Kaeppner v. Maisonneuve, 2008 ONNFPPB 14

ONTARIO NORMAL FARM PRACTICES PROTECTION BOARD

Kaeppner v Maisonneuve

2008 ONNFPPB 14

DATE OF DECISION: 2008-03-02

2007-04

STATUTE: Farming and Food Production Protection Act 1998

HEARING:

BETWEEN: Johanna Kaeppner -- Applicants and Danielle Boudreault-Maisonneuve and Guy Maisonneuve. -- Respondents

1. Johanna Kaeppner 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").

2. The Normal Farm Practices Protection Board (hereinafter referred to as the "NFPPB" or the "Board' respectively) agreed to accept the Application as it related to odors and excessive fly population levels associated with the Respondents' farming practices carried on at 2877 de Maisonneuve, St. Pascal, Ontario which lands were initially stated to be in the ownership of the named Respondents.

3. The Complaint initially filed on behalf of the Applicant as against the Respondents, Danielle Boudreault-Maisonneuve and Guy Maisonneuve, related to Noxious Odor and Excessive Fly Population Disturbance generated or emanating from agricultural activity associated with a dairy farm operation on property owned by the Respondents.

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 Luc Brunet.

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

6. The Hearing requested was scheduled to commence on November 21, 2007.

II HEARING

7. When the Hearing convened, the following participated:

a. Normal Farm Practices Protection Board

1. Anthony Little, a.c. - Vice Chair
2. Helene Blanchard - Member
3. Max Kaiser – Member

b. Applicant

1. Johanna Kaeppner

c. Respondents

1. Danielle Boudreault-Maisonneuve

2. Guy Maisonneuve

3. Mr. Little, the Vice 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, Danielle Boudreault-Maisonneuve, the ownership of the lands against which the Complaint had been raised. Upon being advised that the ownership was apparently in the names of Guyelle Ferme Inc. with the consent of the Applicant, Guyelle Ferme Inc. was added as a Respondent to the Style of Cause and participated as such in the Hearing.

5. 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 Luc Brunet, 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.

6. 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 sllvicultural 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. (1) "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 has 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. (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.

III EVIDENCE AT HEARING:

1. APPLICANTS' PRESENTATION AND EVIDENCE:

12. The Applicant presented a brief opening statement as to the nature of her Complaint and her proposal as to witnesses who were to be called as part of her case and presentation.

13. The Respondents, having designated Danielle Boudreault-Maisonneuve, as their spokesperson did not make a brief opening statement at that juncture thus reserving

14. their rights in that regard to the conclusion of the Applicant's evidence.

The Applicant presented the sworn evidence of the following witnesses

1. Johanna Kaeppner – Applicant

Ms. Kaeppner is the Applicant and through her the Applicant's case was presented. Mr. Kaeppner testified as to factual observations made by her as to the farm practices utilized by the Respondents, the history of the ownership by herself of her property and the relationship between the Respondents and herself.

The Applicant filed photographic evidence and drawings which showed the extent of her property, located at 2625 Rollin Road, st. Pascal, Ontario, the residence, outbuildings and improvements which were located thereupon and the relationship of her property to that of the property lying immediately south of her northern boundary which was owned by the Respondents.

2. Luc Brunet

Mr. Brunet had, as noted above, been involved in the Ministry mandated mediation process in the early summer. He confirmed certain factual observations made at the time of his attendances at the site in response to the filing of the Complaint by the Applicant which supported the evidence previously given by the Applicant. He confirmed that it was not possible to establish whether ' the rotting bales were comprised of hay or straw upon his first visit to the site. He confirmed that the bales were in an advanced state of decomposition. He testified that there was an odor which was identifiable twelve meters away when one stood in the Applicant's driveway. He advised that the odor became more intensive as one approached the bales themselves. He identified the odor as being clearly a rotting smell. He commented that the placement of the bales was puzzling both from the placement in proximity to the Applicant's house as well as being piled two high.

When cross-examined, Mr Brunet commented upon the fly population which he said would usually be found from a manure source which, he said was not present in this instance at this site. It seemed to be consistent with the Applicant's evidence on the point. .

The issue of the bales being tarped at one time or another was raised and he was directed to look at a series of photographs showing tarps in place on the bales. It was his sense that there was inadequate coverage. He was also asked about the spreading of hay as an initiative to improve the content of the soil for future cropping purposes. He agreed that it was a practice of potential value; however, he concluded that the storing for spreading and the piling of the stored bales two high was of questionable purpose and unlikely of positive result in the present instance. Mr Brunet concluded by dealing with the issue of water seepage causing the rotting to be increased. On that score, Mr. Brunet felt that the bales were in an advanced state of decomposition when placed in the configuration they were found in the photos on the site.

15. The viva voce evidence of the Applicant was amplified by exhibits which will be listed as an Appendix to this decision as marked as Exhibits at the Hearing.

16. The Respondents were offered the opportunity to cross-examine the Applicant Board Members were similarly permitted to ask questions of the Applicant.

2. RESPONDENTS' PRESENTATION AND EVIDENCE:

17. The Respondents, having designated Danielle Boudreault-Maisonneuve as their spokesperson, presented a brief opening statement as to the nature of the Responses to the Applicant's Complaints and their proposal as to witnesses who were to be called as part of their case and presentation.

18. The Respondents presented the swom evidence of the following witnesses:

19. Arnold Kuralti - Soni Brand Service.

Mr. Kuralti described his company's function in agricultural industry with specific reference to services provided to the Respondents during the period of time covered in the Application before the Board. His evidence explained his role in the placement

2. Yves Rivard - Director of Municipal Law Enforcement for the Subject Municipality.

He confirmed that there were no applicable Municipal Regulations relating to the subject dispute. He agreed that a Complaint had been made to his Municipality and that no charges had been laid in respect thereto.

3. Roxanne Henry - Agronomist Association of Quebec

Ms. Henry described her qualifications which included a BSc. In Horticulture from the University of Guelph. She was not qualified to give opinion evidence nor was a CV tiled on her behalf. The thrust of her evidence was to establish the efficacy of using compost material to improve soil quality. In that regard, she was able to comment upon specific problems evident from the photographs filed as exhibits.

When cross-examined, this witness conceded that there would be no reason for the bales to have been placed where they were in this instance to achieve the improvement to soil quality which might have been increased when the rotting bales were eventually spread on the Respondent's lands.

4. Guy Desjardins - Local Municipal Councillor

This witness had personal knowledge of the site and the subject dispute. He gave evidence of the tarping of the bales, the smell from the rotting bales and the flies found in the area. He was also asked about the water seepage which may have come from the Applicant's lands. He also was sympathetic to the Respondent's case. He did allow that the odor from the rotting bales was '''strong enough" and that its strength would have been at its peak when the fermentation was in its full swing.

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

IV ARGUMENTS OF THE PARTIES:

20. The Parties were each offered 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.

21. The Applicant's position was based upon a number of arguments which can be summarized as follows:

22. The Respondent's activities were not a normal farm practice.

23. The Disturbance from the Respondent's include both odor and excessive fly populations.

24. The Respondent's activities were aimed at the Applicant because of personal animosity towards the Applicant arising from her complaints as to their farming activities generally.

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

26. The Respondent's activities were a normal farm practice.

27. There was not sufficient evidence presented to establish a disturbance from either of odor and excessive fly populations.

28. There was no personal animosity towards the Applicant arising from her neighborhood activities.

IV DECISION:

1. FACTUAL OBSERVATIONS OF THE BOARD:

23. At the conclusion of the Arguments, the Board determined to reserve its Decision and to release its Written Decision (and Reasons for that Decision) after consultation amongst the Panel Members and the development of the aforesaid Written Reasons in due course. This decision will constitute the Decision of the Board and its Reasons for that Decision.

24. The Board confirmed that the Respondents were carrying on a legitimate farming operation.

25. The Board received evidence that the odor and the presence of excessive populations of flies emanating from the storage by the Respondents of eighteen large bales of decomposing hay along the property line between the Applicant's Property and the Respondents' Property along the Respondents' side of that property line constituted a disturbance which negatively affected the Applicants' enjoyment of her property within the meaning attributed thereto by Section 5 of The Farming and Food Production Protection Act and the jurisprudence of The Normal Farm Practice Protection Board.

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

27. The Board considered that the cumulative effect of all the evidence presented did not establish, with sufficient gravity, a disturbance by flies 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.

28. The Board did not undertake 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. As it determined that it had received sufficient evidence by way of oral testimony and exhibits which allowed the Board to have a proper appreciation of the situation. The Board further noted that the situation causing the alleged disturbance had been removed by the time of the Hearing.

2. FINDINGS OF THE BOARD:

29. The Board finds that the odors emanating from the hay bales stored by the Respondents' adjacent to the Applicant's premises and immediately adjacent to the property line between the Applicant's Property and the Respondents' Property constituted a disturbance within the meaning attributed thereto by the Act which negatively affected the Applicant's enjoyment of her 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.

30. 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 Applicant satisfied that burden with respect to evidence of noxious odor levels at her residence.

31. The Board does not find that the allegedly excessive fly population emanating from the hay bales stored by the Respondents' adjacent to the Applicant's premises and immediately adjacent to the property line between the Applicant's Property and the respondents' Property constituted a disturbance within the meaning attributed thereto by the Act which negatively affected the Applicant's enjoyment of her 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.

32. 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 Applicant has not satisfied that burden with respect to evidence of excessive fly population levels at her residence.

33. The Board finds that the Respondents carry on a legitimate dairy operation from their property located at 2877 de Maisonneuve, SI. Pascal, Ontario.

34. The Board finds that the Applicant is entitled to relief from the odor disturbance so found as the Respondents' usage of the said practice, in the site specific instance of the facts of this case, (as established through the evidence presented at the Hearing), is not 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

35. 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.

36. 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 hopes that effect of its Order will bring to this situation that sense of peace and harmony consistent with good, sound neighborhood relations.

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

3 ORDER OF THE BOARD:

38. The Board Orders that the Respondents shall be enjoined from future storage of hay or straw at any location closer than 1 00 hundred meters to the Applicant's residence at 2625 Rollin Road, SI. Pascal, Ontario the proof of which shall be upon the Respondents.

4. ORDER OF THE BOARD AS TO COSTS:

39. 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<l'," 2 008 at Guelph, Ontario.

Anthony Little, .C., Vice Chair, Normal Farm Practice Protection Board

Heh~ne BlancHard, Member Normal Farm Practice Protection Board

It,k Max Kaiser, ember, Normal Farm Practice Protection Board

II