Philbrick v. Zimmermann, 2008 ONNFPPB 17

ONTARIO NORMAL FARM PRACTICES PROTECTION BOARD

Philbrick v Zimmermann 2008 ONNFPPB 17

DATE OF DECISION:

2008-09-22

2008-02

STATUTE:

Farming and Food Production Protection Act 1998

HEARING:

BETWEEN: Terrence Philbrick and Christine Philbrick -- Applicants and Josef Zimmermann and King’s Course Estate Winery Ltd. -- Respondents

I APPLICATION

[1]. Terrence Philbrick and Christine Philbrick 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 Complaint initially filed on behalf of the two Applicants as against the Respondent, Josef Zimmermann, related to Noise Disturbance generated or emanating from farm and vineyard activity associated with a grape growing operation on property owned by the Respondent.

[3]. 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 noise levels associated with farming practices carried on Ninth Street Louth, Town of Lincoln, Ontario which lands were stated to be in the ownership of Josef Zimmermann and were leased to King’s Court Estate Winery Ltd.

II 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 Hugh Fraser.

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

[6]. Counsel for the Parties and the Parties convened for a Pre-hearing Conference which was held on June 24, 2008 with Glenn C. Walker, the Chair of the Board, presiding. Certain rulings and directions were made as to procedures to be utilized at the Hearing and a Corporate Respondent was added to the Style of Cause.

[7]. The Hearing requested was scheduled to commence on August 27, 2008.

III HEARING

[8]. When the Hearing convened, the following participated:

a. Normal Farm Practices Protection Board

1. Anthony Little, Q.C. - Vice Chair
2. Roger Pelissero - Member
3. John DeBruyn - Member

b. Applicants

1. Terrence Philbrick
2. Christine Philbrick
3. Leigh Daboll - Counsel to the Applicants

c. Respondents

1. Josef Zimmerman, personally and as Director and Shareholder of the Corporate Respondent
2. Thomas Richardson - Counsel to the Respondents

[9]. 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.

[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 Hugh Fraser, 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.

[11]. The Chair reviewed with the Parties the processes to be employed during the Hearing.

[12]. The Parties, through their respective Counsel, presented brief Opening Addresses.

IV EVIDENCE AT HEARING:

[13]. The Applicants presented the sworn evidence of Terrence Philbrick who was, in turn cross-examined by the Respondent’s Counsel. In light of the events to be described hereafter, it is unnecessary to review the thrust of that evidence.

V DECISION:

[14]. At the conclusion of the first day’s Hearing, the Board addressed the Parties as to the continuing course of the Hearing.

[15]. The following morning, the second day of the scheduled three days’ Hearing, the Parties, through their respective Counsel, advised the Board that they had reached a Settlement of the Issues outstanding between them. They sought the Board’s Direction as to the manner in which their Resolution might be best addressed.

[16]. The Board declined to approve the detail of any Resolution or Settlement which may have been reached by the Parties through their respective Counsel as the Board, created as it was by its enabling Statute, could only undertake such activities as might be approved by that enabling Statute.

[17]. In this case, the Board was of the opinion that any decision it might make within its mandate would only be possible were there to have been a completed Hearing.

[18]. The Board confirmed however that the Parties would be able to resolve their differences through legally enforceable contractual arrangements with which the Board need not be involved.

V. ORDER OF THE BOARD:

[19]. On the Consent of the Parties, as expressed through their respective Counsel, the Board Ordered that Application be endorsed “Withdrawn” with the Approval of the Board.

Dated September , 2008 at Guelph, Ontario.

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

Roger Pelissero, Member Normal Farm Practice Protection Board

John DeBruyn, Member Normal Farm Practice Protection Board