Brown v. Howes, 2007 ONNFPPB 5

ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

Brown v Howes

2007 ONNFPPB 5

DATE OF DECISION:

2007-03-26

2006-06

STATUTE:

Farming and Food Production Protection Act 1998

HEARING:

BETWEEN:

Richard Brown and Margaret Brown -- Applicants

and

Grant Howes and William Howes -- Respondents

1.1 Richard Brown and Margaret Brown filed an Application for a Hearing pursuant to Section 5 of The Farming and Food Production Protection Act, 1998, s.o. 1998, Chapter 1 (hereafter referred to as the "Act").

1.2 The Normal Farm Practices Protection Board (hereinafter referred to as the "NFPPA" or the "Board" respectively) agreed to accept the Application as it related to noise levels associated with fanning practices carried on at Loyalist Parkway, R.R. # I, Bath, Ontario which lands were stated to be in the ownership of Grant Howes.

1.3 The Complaint initially filed on behalf of the two Applicants as against the Respondent, Grant Howes, related to Noise Disturbance generated or emanating from farm and vineyard activity associated with a grape and apple-growing operation on property owned by the Respondents.

I PRE-HEARING EVENTS

1.4 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 Ben Hawkins.

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

1.6 The Hearing requested was scheduled to commence on January 17,2007.

II HEARING

1.7 When the Hearing convened, the following participated:

a) Normal Farm Practices Protection Board

I. Anthony Little, Q.c. - Vice Chair

2. Dwayne Acres - Member

3. John DeBruyn – Member

b) Applicants

I. Richard Brown

2. Margaret Brown

b) Respondent

I. Grant Howes

2. William (Bill) Howes

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

1.9 The Chair reviewed with the Respondent, Grant Howes, the ownership of the lands against which the Complaint had been raised. Upon being advised that the ownership was apparently in the names of Grant Howes and William (Bill) Howes, with the consent of the Applicants and William Howes, William (Bill) Howes was added as a Respondent to the Style of Cause and participated as such in the Hearing.

1.10 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 Ben Hawkins, the Board's 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.

1.11 The Board considered the entirety of the Act and noted specific relevant sections of the Act including the following:

Section 1. (1) "agricultural operation" means an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward; Section 1. (1) "disturbance" means odour, dust, flies, light, smoke, noise and vibration; Section 1. (I) "normal farm practice" means a practice that, (a) is conducted in a manner consistent with proper and accepted 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; Section 4. (1) The Board may exercise such powers and shall perform such duties as are conferred or imposed upon it by this Act. Section 4. (2) The Board bas the power, (a) to inquire into and resolve a dispute respecting an agricultural operation and to determine what constitutes a normal farm practice; and (b) to make the necessary inquiries and orders to ensure compliance with its decisions. Section 5. (1) 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. Section 5. (16) Mter the Board has completed the bearing, it shall provide a written decision stating whether the board is of the opinion that, (a) the farm practice is a normal farm practice; (b) the farm practice is not a normal farm practice; or (c) the farm practice will be a normal farm practice if the farmer makes specific modifications in the practice within the time set out in the decision.

III EVIDENCE AT HEARING:

1. APPLICANTS' PRESENTATION AND EVIDENCE:

1.12 The Applicants, having designated Richard Brown, as their spokesperson presented a brief opening statement as to the nature of their Complaint and their proposal as to witnesses who were to be called as part of their case and presentation.

1.13 The Respondents, having designated Grant Howes, as their spokesperson did not make a brief opening statement at that juncture thus reserving their rights in that regard to the conclusion of the Applicants' evidence.

1.14 The Applicants presented the sworn evidence of the following witnesses:

1. Richard Brown – Applicant

Mr. Brown is an Applicant and through him the Applicants' case was presented. He described himself as a farmer, an enthusiastic supporter of agricultural endeavors and a fan of the wine industry and its products. He had prepared a summary of his evidence which he sought to file as an Exhibit. The Board determined that it wished to have the case presented through "live" evidence and declined to accept the proposed summary as an Exhibit. Mr. Brown advised that he and his wife had acquired their property approximately twelve years previously when they had retired from their professional occupations or activities and determined to move to a rural setting in their retirement. The subject property was occupied by the Applicants as their principal residence.

Mr. Brown described himself as a farmer who carried on a farming activity which qualified him for that designation in the eyes of Revenue Canada (as far as his income levels of taxation would indicate) and which allowed him to receive preferential ratings with respect to Municipal Property Taxes. Mr. Brown testified as to factual observations made by him as to the use by the Respondents of propane-fired noise cannons, the history of the ownership by himself and his wife of their property and the relationship between the Respondents and himself.

2. Margaret Brown – Applicant

Mrs. Brown's evidence was presented as part of a panel comprising her husband and herself. Each Applicant took a particular role on the presentation of evidence and, in the result, Mr. Brown's evidence was bifurcated and cross examination by the Respondents did not commence until the presentation of all the evidence of the Applicants was completed.

The Applicants filed photographic evidence and drawings which showed the extent of their property, located at 9536 Loyalist Parkway, R.R. # I, Bath, Ontario, the residence, outbuildings and improvements which were located thereupon and the relationship of their property to that of the property lying immediately west of their westem boundary which was owned by the Respondents. Mr. Brown confirmed that the Zoning of their property was "Prime Agriculture".

Both Applicants testified as to events which had taken place as between themselves and either of the Respondents.

3. Micheline Shea – Neighbor

Ms. Shea, a Registered Nurse and a neighbor whose property lies to the west of the Respondents' property (and, thus, to the west of the Applicants' property) gave evidence of the effect that she perceived the noise from the Respondents' propane fired cannons ("bird bangers") had upon herself. In that regard, she advised the Board that she worked shifts at her employment at a local hospital in Kingston and that she would be and was disturbed by the noise generated by the Respondents' noise cannons. She indicated that she felt this might affect negatively her job performance as she became sleep deprived.

4. Darryl MacDermaid – Neighbor

Mr. MacDermaid, a neighbor of close proximity, described himself as a long-time area resident (since 1972) and former farmer who had stabled horses at the Applicants' property but not during their particular ownership. Mr. Macdiarmid's property is located at 9466 Loyalist Parkway and his holding, as a farm, is located to the east of the Applicants' property. The property comprised his principal residence and he cash-cropped the non-residential acreage. He also gave testimony as to the noise and effect of the noise upon himself and the neighborhood generally. He described his residence as being 1,420 feet away from the Respondents' property line. In cross-examination, he conceded that there would be three fence-rows between himself and the source of the noise.

5. Michael Schenk – Neighbor

Mr. Schenk was an area framer and Municipal Councillor for the Municipal Government of the area in which the subject properties are located. His farming activities were diverse and extensive in a number of endeavors. He advised the Board that he was an operator of propane-fired cannons ("bird bangers") which he used to protect his sweet com crops. He gave evidence of his personal knowledge of the noise emanating from the Respondents' operations, its effect upon him and, as well, as to complaints which he had received in his capacity as an elected Councillor from local area residents with regards to the noise problem. He also testified as to the effect the noise from the Respondents' operations would have upon horses should there be horses located on the Applicants' property in the paddocks apparently designed for the purpose. Mr. Schenk's property was located to the south and west of the respondents' property.

1.15 The viva voce evidence of the Applicants' witness and evidence was amplified by many exhibits which will be listed as an Appendix to this decision and marked as Exhibits at the Hearing.

1.16 An additional Exhibit, being a series of letters apparently received from four area residents, was marked as an Exhibit # 9 in the Hearing.

1.17 The Respondents were offered the opportunity to cross-examine the Applicants' witnesses and the Board Members were similarly permitted to ask questions of the witnesses called.

2. RESPONDENTS' PRESENTATION AND EVIDENCE:

1.18 The Respondents, having designated Grant Howes, as their spokesperson presented

1.19 a brief opening statement as to the nature of the Responses to the Applicants' Complaints and their proposal as to witnesses who were to be called as part of their case and presentation.

The Respondents presented the sworn evidence of the following witnesses:

1. Ian Frensch - Proprietor of C. Frensch Ltd.

Mr. Frensch described his company's function in the grape growing industry while advising that their product lines extended to industry sectors beyond the growing of grapes. Propane-fired noise cannons sold for protection against crop damage occasioned by bird populations was the focus of Mr. Frensch's evidence at this Hearing. Other devices used for the same purposes and sold by the C. Frensch Ltd. included pyrotechnical devices, netting of various types and quality, stationary "decoy" devices, wind-generated flashings and other sound devices. He stressed that there were no chemicals sold for deterring bird or vermin populations.

Mr. Frensch described in detail the propane-fired noise generators used in the industry and the specifics of the two machines used by the Respondents as part of their crop control/protection initiatives.

Mr. Frensch was a co-author of Exhibit Three - a FactSheet dated June 1998 – a publication of the Ontario Ministry of Agriculture Food and Rural Affairs.Mr. Frensch also gave the Board evidence of the use of netting as a deterrent to bird damage. He discussed the costs of such netting and their types. He suggested that less than 1 % of grape growers in the Niagara Peninsula would use netting and that the use would be restricted to high value grape varietals.

2. Margaret Appleby - OMFRA Representative

Ms. Appleby identified herself as an employee of OMFRA (the Ontario Ministry of Agriculture Food and Rural Affairs) based in nearby Brighton, Ontario. She held a designation as an Integrated Pest Management Specialist. She described her qualifications which included a BSc. In Horticulture from the University of Guelph. She indicated that she had been an apple grower and now functioned as a Regional Crop Advisor for OMFRA

The Board accepted Ms. Appleby's credentials as allowing her to be accepted as an "expert" capable of giving opinion evidence within her field of expertise. The thrust of this witnesses' testimony was to indicate that there was a developing grape-growing and wine-producing industry in the region of Prince Edward County (and its environs) within which propane-fired noise cannons were in use and that such usage was a normal farm practice in that industry both within the region and elsewhere in Ontario.

3. Jim Hair - OFA Representative

Mr. Hair identified himself as a Member Service Representative of the Ontario Farmers Association. OFA is a general farm association within in excess of 39,000 farm members. In the County of Lennox-Addington there are 360 farms which are a part of the larger membership. Mr Hair presented the perspective of OFA. The position of OFA as determined by the two local county levels was that the usage of propane-fired noise cannons comprise a normal farm practice if operated within the pertinent rules and regulations and with due regard to the neighboring properties.

Mr. Hair advised the Board that OFA at the County level was supportive of the Respondents in their agricultural pursuits with the usage of propane-fired noise cannons. Mr. Hair was not qualified as an "expert' in the Hearing.

4. William (Bill) Howes – Respondent

Mr. Bill Howes described the historical background of the ownership of the Respondents' property and its use in agricultural pursuits. He described his role and that of his brother, Grant Howes, in the growing of apples, the retailing of apples and the diversification of the operation into grape growing and potential wine production. He described in detail the routines he used in the operation of the two machines acquired in 2006 from C. Frensch Ltd.

Mr. Bill Howes conceded that there would have been occasions when the machines were operated as set out in Exhibit 5 and that the machines may have operated as late as 10:30 pm on some occasions. He further testified that on occasions one machine would not have been operating but that their would likely be two operating more than 50% of the period of time in which the machines were being used over a six week time frame. He confirmed that the machines were always in the same locations as evident at the Board's site attendance on January 18,2006.

Bill Howes also presented evidence as to the events which had taken place as between himself and the Applicants. He also filed as an Exhibit a sketch which he had drawn which showed the positioning of the two propane-fired noise cannons and their proximity to the Applicant's property generally and the Applicants' residence specifically.

He commented upon the thrust of Ms. Shea's testimony, its accuracy and conclusions.

5. Marty Byl- Representative of the Grape Growers of Ontario

Mr. Byl described his background as being a crop insurance adjuster, a farmer in diversified operations with substantial acreages, a participant in the endeavors of the Grape Marketing Board which represents 600 grape growers of Ontario, a user of propane-fired noise cannons and other devices used to minimize potential crop damage by bird populations as well as various forms of netting control devices. He also described himself as being familiar with horses and the effects of noise upon such animals. Mr Byltestified as to his knowledge of the practicalities of the use of noise cannons and the best practices which he felt appropriate to such usage in the Niagara Region and generally in the Grape-Growing and Wine-Producing Industry. He said that there were 1,400 propane-fired noise cannons in use in the Niagara Region. He summarized the experience the Industry had experienced with respect to their usage and their proximity to other properties in the locale.

6. Grant Howes – Respondent

Mr. Grant Howes testified in amplification of the evidence given by his brother, Bill Howes. He gave detail as to the expense to which the diversification into grape growing had raised as well as the future plans which the Respondents had for their property. In 2001, he had removed some apple trees and replaced them with 12 acres of grape vines. He explained the decision to acquire the two propane-fired noise cannons from C. Frensch Ltd. in 2006 and the instructions which he had given as to their operation. He explained that he had used netting as a deterrent to bird crop damage with limited positive effect. He testified as to the events which had taken place as between himself and the Applicants or either of them.

7. Richard Johnston - President, Prince Edward County Grape Growers Association.

Richard Johnston described himself as the Chair of the Prince Edward County Wine Growers Association, a position he had held for five years. He described Grant Howes as a member in good standing and a producer from a location in Prince Edward County distant from the subject properties. He explained that the Association comprised 34 members of which 10 are wine producers in addition to being grape growers. He explained that there were 17 other grape growers, two of whom were also wine producers who were not members of the Association and who carried on their operations within the general area. He described that there had been a production from these activities of 424 tonnes of grapes in 2006.

The thrust of Mr. Johnston 's evidence was that there was a rapidly developing industry which was needed as a consequence of the failure of the vegetable growing and canning industry which had become no longer viable in the world economy and which was needed to bolster the economy of the area. He added that tourism would benefit from the industry's development as had the Niagara Region with the development of the grape growing and wine producing industry in that Region. He explained that the development of the grape-growing industry in the region of the subject property depended upon the burying of the grape vines during the winter season - a cost controlling factor, which made the development problematic. In Mr. Johnston's analysis, the use of propane-fired noise cannons was an essential factor in allowing the industry to develop and the possibility of profit to be secured.

Mr. Johnston also testified as to the effect of the use of noise cannons upon horses.

1.20 The Applicants were offered the opportunity to cross-examine the Respondents' witnesses and the Board Members were similarly permitted to ask questions of the witnesses called.

3. NORMAL FARM PRACTICE PROTECTION BOARD'S PRESENTATION AND EVIDENCE:

1.21 The Normal Farm Practice Board entertained the sworn evidence of the following witnesses:

1. Ben Hawkins - Ontario Ministry of Agriculture. Food and Rural Affairs

Mr. Hawkins, who was graduated from the Nova Scotia Technological College with a B.Agr. and a Masters in Applied Sciences, had been in the employ of OMAFRA since 1988. He testified at the Hearing as to his role in this Application. Pursuant to the Minister's direction, Mr. Hawkins met with the Applicants at their property to investigate the complaint and then to attempt to mediate a resolution to the dispute.

In that regard, he testified as to his observations of the noise emanating from the Respondents' use of propane-fired noise cannons. He noted that there was no difficulty in carrying on a normal conversation at the west side of the Applicants' residence when the machines were in operation. He testified that it was his opinion that both devices were in operation when he attended on September 5, 2006 and that he was unable to differentiate as between noise levels from either machine versus the other. He confirmed that he did not attend the site of the machines and could not say where they were located on that occasion on the Respondents' property.

Mr. Hawkins confirmed that the purpose of the devices was to irritate birds and that, in his opinion, that purpose was being fulfilled at least insofar as he was concerned when he heard the noise from the Applicants' property. He confirmed that he had no equipment with which he could measure the noise levels of the propane-fired noise cannons at any position on the Applicants' property.

He testified as to his later meeting with the Respondent, Grant Howes, and to being advised that it was Mr. Howes' position that he was conducting a normal farm practice with these devices and that he would not modify his usage.

Mr. Hawkins testified that he had been on the site on two occasions and he filed a sketch which he had prepared showing the locations of the devices on September 14, 2006 and relationship between the positions of the Respondents' two propane-fired noise cannons and the Applicants' property and the improvements located thereupon.

2. Hugh Fraser - Ontario Ministry of Agriculture. Food and Rural Affairs

Mr. Fraser filed with the Board a curriculum vita. He had been graduated from the University of Guelph with a degree of Bachelor of Science in Agricultural Engineering in 1979 and a Master of Science in Engineering in 1991. He was employed as an Extension Agricultural Engineer by OMAFRA. Amongst other publications, Mr. Fraser, together with Ian Frensch and K. Helen Fisher had authored Board Exhibit Three - a FactSheet dated June 1998 - a publication of the Ontario Ministry of Agriculture Food and Rural Affairs.

Mr. Fraser's CV document was reviewed and the Board determined, with the consent of the Applicants and the Respondents, that Mr. Fraser could testify as an expert in issues relating to propane-fired noise cannons as agreed to by the Parties.

Mr. Fraser described his contacts with the Applicants and his presentation of generic materials with respect to the sound levels emanating from propane-fired noise cannons.

Mr. Fraser reviewed a series of initiatives described by him as "best practices" which were general to the industry and site-specific to the Respondents' operations. Those initiatives were, in part, consistent with the Fact Sheet marked as an Exhibit in the Hearing. It was his opinion that each ought to be observed and implemented by the Respondents where possible. They included the following:

1. The standard separation distance between a point of reception such as a neighboring residence should be a minimum of 400 feet from the point of location. This distance is variable as a consequence of the dimensions of the individual property and is an evolving distance. The standard has been set in other locations; but, each situation is considered site-specific.

2. Operation of noise cannons should only commence 30 minutes before sunrise and conclude 30 minutes after sunset at the location.

3. Volleys should not be less than an average of three minutes apart.

4. The use of cannons should be always accompanied by variations in times of usage which accommodates specific situations arising in the neighborhood and should attempt to accommodate, where possible, specific situations developing with the neighbors' usage of their properties and day specific activities of those neighbors.

5. The noise cannons should always be kept on a level plane and should spin randomly so as not to "aim " at neighbors. In addition, there should be an avoidance of locating the cannons to create a "tunnel effect" with respect to sound by aiming the blasts of the cannons between a row of vines.

6. Neighborhood cooperation/consideration should be emphasized.

7. A telephone number and contact with a local individual should be made available to neighbors to allow for adjustments if there is to be a malfunction.

8. Locations ought to be varied within the area of use to avoid the establishing of a recognizable pattern by the predators.

9. Other initiatives to combat bird damage ought to be considered and implemented - where possible, feasible and cost efficient.

The bulk of the testimony presented through Board questioning and later cross examination by the Parties was to deal with two matters.

The first was the relationship between two publications of the Ontario Ministry of the Environment described as NPC 132 and NPC 232 (hereinafter respectively "NPC 132" and NPC 232") to each other and to the facts of this Application generally.The second was the legal implications or effects of:

I. A Decision of the predecessor Board to the Normal Farm Practice Board cited as Board File No. FPPB92-01 involving Bader and Hubbard as Applicants and Dionis as Respondents - hereinafter referred to as the "BaderiDionis Decision ") and,

2. A Decision of the Normal Farm Practice Board cited as Board File No 2003 - 02 involving Peter Van Order and Carolyn Van Order as Applicants and Earl Nolan and Sharon Nolan as Respondents - (hereinafter referred to as the" Van OrderiNolan Decision ")

1.22 The Applicants and the Respondents were each offered the opportunity to cross examine the Board's witnesses and the Board Members were similarly permitted to ask questions of the witnesses called.

IV ARGUMENTS OF THE PARTIES:

1.23 The Parties were each offered (through their respective spokespersons) the opportunity to summarize their positions and make submissions as to the merits of their respective cases and the application or non-application (as the case may be) of relief sought respectively.

1.24 The Applicants' position was based upon a number of arguments which can be summarized as follows:

1. Firstly, the Applicants argue that the Van Order Nolan Rulings placed the Board in a position which it could not fail to follow that Hearing's Decision in that Hearing. In the Applicants' analysis, this Board was bound by its earlier Decision;

2. Secondly, this Hearing was bound to follow the Guidelines imposed by NPC 232; and,

3. Thirdly, the evidence presented by way of extrapolation, but without any direct evidence of noise levels at a point of reception thirty meters from the nearest point of the Applicants' residence, would exceed the levels permitted by NPC 232.

4. Fourthly, there had not been observance of the best practices directives found in Exhibit Three at the Hearing

1.25 The Respondents' position was also based upon a number of arguments which can be summarized as follows:

1. . Firstly, there had been a failure of the Applicants' evidence to establish a "disturbance" as that term is defined in the The Farming and Food Production Protection Act. 1998. s.o. 1998. Chapter 1.

2. In the alternative, the extent and consequence of the "disturbance" was not established by the Applicants' evidence to a degree sufficient to permit intervention therein by the Board.

3. In the further alternative, the Respondents activities constitute a "normal farm practice" as that term is defined in the The Farming and Food Production Protection Act. 1998. s.o. 1998. Chapter 1.

4. The Respondents also relied on Board Decision 2000-03.

IV DECISION:

1. FACTUAL OBSERVATIONS OF THE BOARD:

1.26 At the conclusion of the Arguments, the Board determined to reserve its Decision

1.27 and to release its Wrinen Decision (and Reasons for that Decision) after consultation amongst the Panel Members and the development of the aforesaid Wrinen Reasons in due course. This decision will constitute the Decision of the Board and its Reasons for that Decision. The Board confirmed that the Respondents were carrying on a legitimate farming operation.

1.28 The Board received evidence that the noise from the Respondents' propane-fired noise cannons constituted a disturbance which negatively affected the Applicants' enjoyment of their property within the meaning anributed thereto by Section 5 of The Farming and Food Production Protection Act and the jurisprudence of The Normal Farm Practice Protection Board.

1.29 The Board considered that the cumulative effect of all the evidence presented did establish, with sufficient gravity, a disturbance by noise which might or might not be characterized as an abnormal farm practice at certain times of the day warranting the awarding of an Order of the Board which would restrict the Respondents within their farm operation at the premises.

1.30 The Board undertook a site investigation as provided under The Farming and Food Production Protection Act - 1998 and the Rules Regulation and Procedures of The Normal Farm Practice Protection Board.

1.31 The Board heard evidence from Hugh Fraser as to best practices with the use of propane-fired noise cannons which would have the effect of minimizing the disturbances which have been found by the Board to have existed.

1.32 The Board considered the Van Order Nolan Decision and determined that the finding upon which the Applicants placed strong reliance did not have the cogency and relevancy which the Applicants urged it be given. The Board reviewed the facts of the case and noted that the Hearing Panel, in that case, had been aided by the evidence of Hugh Fraser who was also a Board witness at this Hearing. The facts of that case are distinguishable from the instant facts as the use of noise cannons in that instance was a night-time use. Clearly, the focus of the evidence was not upon day-time use of these devices. On that basis alone, this Board does not find itself bound by that decision

1.33 While the Board noted what seemed to be an unequivocal acceptance of the mandatory provisions of NPC 232 by the Hearing Panel in that case this Board finds that the statement made as to day-time use was obiter dicta to the issues before that Hearing Panel and not part of the ratio decendi of its Decision as to was a site-specific finding. In elaboration of the foregoing, while, at first blush, it seemed that the Board's final sentences in the Van OrderlNolan Decision might put the farm practice in the instant case in jeopardy, when analyzed, the Board finds that the comments regarding day-time use where unnecessary and unresponsive to the issues before that Hearing Panel. That Panel went farther than it needed to go in its Decision and this Board finds that it is not restricted to making its own finding on the site-specific facts it has analyzed.

1.34 In addition, the Board considered whether it was bound by the doctrine of stare decisis and thus unable to give a decision which was inconsistent with an earlier decision of the NFPPB. The obvious point was whether or not the Van OrderlNolan Decision was binding upon this Board. To determine its proper position in that regard, the Board has reviewed certain authorities.

Those authorities include:

1. Danaskas v. Canada (War Veterans Allowance Board), [1985] FJ.C. No. 32,59 N.R. 309 @ 311) (C.A.)

2. Domtar Inc v. Quebec 1993 CanLII 106 (SCC), [1993] S.C.J. No. 75, I 15 D.L.R. (4th ) 385.

3. Administrative Law in Canada - Fourth Edition - Sarah Blake – LexisNexis Butterworths

1.35 Based upon those Authorities and the Common Law Jurisprudence relevant to

1.36 Administrative Bodies' Powers of Decision generally, this Board finds that it is not bound by the Van OrderlNolan decision nor the doctrine of stare decisis. The Board also reviewed the BaderlDionis decision. The Board noted some similarity in the factual underpinnings of that case to the present Application. The Board also noted the participation of Hugh Fraser in those proceedings. This case seemed more to support the position of the Respondents. The Board repeats its earlier-noted comments with respect to the issue of stare decisis.

2. FINDINGS OF THE BOARD:

1.37 The Board considered the letters which were filled by the Applicants as Exhibit 9. None of the authors of those letters were called as witnesses. Accordingly, there was no reasonable possibility of the Respondents being able to question the knowledge base or interest of the authors. In the result, while accepting the Exhibit, the Board is unable to give a great deal of weight to their individual content beyond accepting that they may have represented some thoughts of their authors at the time each was created.

1.38 In that regard, the letters themselves are to be considered Secondary Sources in Law. They comprise hearsay evidence. Hearsay statements are not made under oath, nor are they subject to cross-examination. In addition, the trier of fact is not afforded the opportunity to observe the demeanor nor assess the credibility of the person who made the statement. Hearsay evidence is inherently weak and, consequently, the party seeking to rely on the hearsay evidence must show that the evidence is both necessary and reliable.

The authority for that proposition is:

1. Gentles v. Toronto (City) Non-Profit Housing Corp., [2006} OJ. No. 1014.

2. See also J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2'd ed. (Markham: Butterworths, 1999).

1.39 Similarly, viva voce evidence was presented by Michael Schenk as to complaints which he had received in his capacity of a Municipal Councillor from area residents as to the noise levels created by the Respondents' operations of the propane-fired noise cannons and the effect upon those residents by such usage. In the Board's analysis, those comments would also be considered hearsay evidence. The Board listened with interest to those anecdotal comments. Some weight was given to their content; however, the Board preferred the evidence of direct observations from witnesses who were presented at the Hearing as that evidence could be tested by cross-examination.

1.40 In the end result, it was conceded by the Respondents that the use of these devices is a disturbance to adjoining property owners and specifically the present Applicants. For that reason, the issue of weight to be given to hearsay evidence and/or written commentaries does not become as crucial to the success or failure of the Applicant's case.

1.41 The Board considered the burden which is placed upon an Applicant in proceedings before the Board to establish its position on a balance of probabilities. In that regard, the Board noted that the Applicants fell short of establishing that burden with respect to evidence of noise levels at their residence. While accepting that there was no present and available evidence available to establish sound levels as defined in NPC 232 at the point of reception 30 meters away from the Applicants' residence, it was a fact that there was no such evidence and, on the evidence of the Board's witness, Hugh Fraser, there was no valid means of extrapolating his earlier data in other situations to the instant location and fact situation.

1.42 The Board notes, without making a finding on the point, that the stated purpose of The Farming and Food Production Protection Act - 1998 is to bridge disagreements as between agricultural operators and the residents of communities within which they operate. There is the need to recognize that a synergy of cooperation is necessary and that there are certain realities of agricultural operations which will not be consistent with the non-agricultural activities of their neighborhoods. The aim is to create a system of harmonious activity with the recognition that each competing interest has a right to coexist with the other and that mutual respect and cooperation should be the watchwords of their endeavors.

1.43 In the present case, the Board observes that there is obvious tension between the Parties and that the mutual unhappiness with each other's positions is real and palatable. In rendering its decision, this Board feels powerless to find a solution with will bring to this situation that sense of peace and harmony consistent with good, sound neighborhood relations.

1.44 The Board finds that the noise from the Respondents' propane-fired noise cannons constituted a disturbance within the meaning attributed thereto by the Act which negatively affected the Applicants' enjoyment of their property within the meaning attributed thereto by Section 5 of The Farming and Food Production Protection Act - 1998 and the jurisprudence of The Normal Farm Practice Protection Board.

1.45 The Board finds that the Respondents carry on a legitimate farming operation, including a seasonal retail outlet for the sale of fruits and vegetables and related items, from their property located on the Loyalist Parkway, R.R. # I, Bath, Ontario.

1.46 The Board finds that the Applicants are not entitled to any relief from the disturbances so found as the Respondents usage of the said propane-fired noise cannons is, in the site specific instance of the facts of this case, (as established through the evidence presented at the Hearing), sufficient to satisfy the onus of establishing on a balance of probabilities that such usage is a normal farm practice within the meaning of the The Farming and Food Production Protection Act - 1998.

1.47 On that score, while appreciating that the changing activities of the Respondents' farm practices have made the neighborhood relationship's playing field different from the atmosphere which previously prevailed, aside recommending the series of "best practices" endorsed as appropriate by Hugh Fraser and set forth in Sub-paragraph 1.20, and directing that the operations shall not by undertaken any earlier that one half hour before sunrise at the site and not later than one half hour after sunset at the site with a repetition of blasts no less than an hourly average of three minutes separating each volley of three blasts during consecutive hours of operation, this Board can make no further order, suggestion or finding which might assist the Applicants.

1.48 For the reasons set forth above, the Board grants this Application.

3. ORDER OF THE BOARD:

1.49 The Board Orders that the use of propane-fired noise cannons by the Respondents

1.50 in their grape growing activities shall not by undertaken any earlier that one half hour before sunrise (at the site) and not later than one half hour after sunset (at the site) with a repetition of blasts no less than an hourly average of three minutes separating each volley of three blasts during consecutive hours of operation. The said propane-fired noise cannons shall not be used prior to fourteen days before the fruit has ripened or the I" of August in any year - whichever is the later and shall cease upon the completion of the harvest of the fruit in any year.

4. ORDER OF THE BOARD AS TO COSTS:

The Board has determined to make no Order as to costs - in all the circumstances - as there is no authority for the awarding of costs.

Dated March 2007 at Guelph, Ontario.

CtI Anthony Little Q.c., Vice Ch[,

Normal F. Practice Protection Board

n, Member,

arm Practice Protect'