Reilly and Bastedo v. Leckey, 2007 ONNFPPB 18

ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

Reilly and Bastedo v Leckey

2007 ONNFPPB 18

DATE OF DECISION:

2007-01-31

2006-04

STATUTE:

Farming and Food Production Protection Act 1998

HEARING:

BETWEEN:

Ron Reilly and Jane Bastedo -- Applicants

and

David Leckey and Sylvia Leckey. -- Respondents

Header Instructions

Reilly and Bestedo v Leckey

2007 ONNFPPB 18

Date of Decision:

2007-01-

2006-04

Statute:

Farming and Food Production Protection Act 1998

Hearing:

Between:

Ron Reilly and Jane Bastedo -- Applicants

and

David Leckey and Sylvia Leckey. -- Respondents

1. Ron Reilly and Jane Bastedo filed an Application for a Hearing pursuant to Section 5 of The Farming and Food Production Protection Act

2. The Normal Farm Practices Protection Board agreed to accept the Application as it related to diesel tractor noise associated with farming practices carried on at 753 County Road 5, R.R. # I, Wooler, Ontario which lands were stated to be in the ownership of David Leckey.

3. The Complaint filed on behalf of the two Applicants as against the Respondent related to Noise Disturbance and Vibration Disturbance generated or emanating from farm and vehicular activity associated with a beef cattle operation on property owned by the Respondent.

PRE-HEARING EVENTS

4. Prior to the commencement of the Hearing, pursuant to direction received from the Minister of Agriculture, a mediation session was organized in which the named mediator was Robert P. Stone.

5. The Mediation proved not to be successful with the result that the matter was scheduled for a Hearing.

6. Prior to the commencement of the Hearing, the Applicants filed an Amended Application for Hearing in which the Original Complaint was expanded from the Original Complaint as to Noise Disturbance to include a Complaints as to disturbances for odour and light.

7. The Hearing requested was scheduled to take place on December 7, 2006.

HEARING

8. When the Hearing convened, the following participated:

a. NOrmlJl Farm Practices Protection Board

1. Glenn C. Walker - Chair

2. Anthony Little - Vice Chair

3. Helime Blanchard, Member

b. Applicants

1. Jane Bastedo

2. Ron Reilly

c. Respondent

1. David Leckey

2. Sylvia Leckey

3. Mr. Walker, the Chair of The Normal Farm Practices Protection Board acted as Chair of the Hearing Panel and called the Hearing to order.

4. The Chair reviewed with the Respondent the ownership of the lands against which the Complaint and Amended Complaints had been raised. Upon being advised that the ownership was apparently in the names of David Leckey and Sylvia Leckey, with the consent of the Applicants and Sylvia Leckey, Sylvia Leckey was added as a Respondent to the Style of Cause and participated as such in the Hearing.

5. Prior to the commencement of the Hearing, the Applicants had filed a Notice of Motion with the Board in which they sought, inter alia, an Interim Order prohibiting the Respondent from causing noise disturbance prior to 7:30 am. The Board heard representations as to whether there had been proper service of the process and proper notice. On that score, the Respondents agreed that the Notice of Motion was properly before the Board. Under the Order of the Chair, the Notice of Motion and the Supporting Affidavit of Ron Reilly was collectively marked as Exhibit # I at the Hearing,

6. The Board heard argument with respect to the Motion and reviewed the Affidavit filed in support thereof.

7. Following oral argument by the Parties, the Board reserved its Decision on the Motion and indicated that it would proceed to hear evidence at the Hearing and issue its Decision on the Motion at the conclusion thereof.

8. While The Normal Farm Practice Protection Board is most grateful to the Parties for their participation in the mediation process mandated by the Minister of Agriculture and convened under the auspices of Robert P. Stone, the Boards mandate is to determine whether or not a disturbance exists and, accordingly, whether or not it can be determined a normal farm practice if such finding were to have been made.

EVIDENCE AT HEARING:

I - APPLICANTS' PRESENTATION AND EVIDENCE:

15. The Applicants, having designated Jane Bastedo, as their spokesperson presented a brief opening statement as to the nature of their Complaints and their proposal as to witnesses who were to be called as part of their case and presentation.

16. The Respondents, having designated David Leckey, as their spokesperson declined to make a brief opening statement and reserved their rights in that regard to the conclusion of the Applicants' evidence.

17. The Applicants presented the sworn evidence of the following witnesses

19. Ron Reilly – Applicant

Mr. Reilly is an Applicant and through him the Applicants' case was presented. He had filed an Affidavit and its content and the oral expansion of it represented the thrust of his evidence.

2. Peter Hicks - NeighbourlFriend of Applicants

Mr. Hicks is a friend of the Applicants. He had filed an Affidavit and its content and the oral expansion of it represented the thrust of his evidence.

3. Gary Dyke - Quinte West - Deputy City Clerk

Mr. Dyke gave evidence of the role that the Municipality played in the development of the events leading to the Applicants filing their Request for Hearing. He expanded upon the documents which had emanated from the Municipality's office and the interpretation of those documents generally.

4. Sylvia Leckey – Respondent

Sylvia Leckey was asked questions about the relationships between the parties and the nature of the Respondent David Leckey's morning activities and farming activities as thye related to the issues before the Parties.

5. Robert P. Stone - P. Eng. - Engineer - Soil Management – Ontario

Ministry of Agriculture, Food & Rural Affairs Mr. Stone gave expert opinion evidence as to his observations as to the Respondents' farm practices, farm practices generally and specific alternatives to the methods of farm practice presently being utilized by the Respondents.

The viva voce evidence of Ron Reilly and Peter Hicks was augmented by Affidavits of each sworn at the Hearing and marked as Exhibits # 2 and # 3 respectively at the Hearing.

19. An additional Exhibit being the CV of Robert P. Stone, P.Eng. was filed as Exhibit # 4 at the Hearing. The Board accepted that