Sault Farm v. Young Sod Farm, 2008 ONNFPPB 19

ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

Sault Farm v Young Sod Farm

2008 ONNFPPB 19

DATE OF DECISION:

2008-05-18

2007-05

STATUTE:

Farming and Food Production Protection Act 1998

HEARING:

BETWEEN:

William H. Sault, C.O.B as Sault Farm – Applicant

And

Young Sod Farms Inc. – Respondent

DECISION

PURPOSE OF THE HEARING

This application was made by the Applicant for relief under Section 5 of the Farming and Food Production Protection Act, 1998 ("the Act"), regarding dust emanating from fields used as part of the agricultural operation of the Respondent at R.R. #1 Wainfleet, Ontario. The hearing took place in the Municipal Chambers of the Town of Pelham, 20 Pelham Town Square, Fonthill, Ontario on April 2 and April 3, 2008. A site visit was conducted by the panel on April 2, 2007.

The Applicant alleges that he is a person directly affected by a disturbance from an agricultural operation operated by the Respondent and seeks a determination under Section 5 of the Act as to whether the disturbance results from a normal farm practice.

The alleged disturbance is one of dust arising from the sod farm operation on the farm of the Respondent.

EVIDENCE

WITNESSES FOR THE APPLCIANT

JUDY HAYNE

Judy Hayne resides in Wainfleet, Ontario, but has worked on the Applicant's farm (herein after called the "Sault Farm") described as Part Lot 37, Concession 3, Wainfleet, since 1976 and is intimately knowledgeable about the workings of the vegetable growing operation on that farm. The Sault Farm, consisting of approximately 50 acres, was used, inter alia, to grow vegetable crops in 2007. The crops grown were cabbage, tomatoes, peppers, eggplant, squash and buckwheat.

There were three fields of cabbage planted. Field one was directly across the road from the farm of the Respondent. Field two was behind the barn and field three was at the back of the Sault Farm. In mid-August 2007, the first cabbage field, directly across Flanagan Road from the Respondent's farm, was about three weeks from harvest. The Applicant does not use any irrigation for his crops and this particular crop was not covered by crop insurance. The weather conditions in 2007 according to the witness were "very, very dry" and in her opinion it was a record drought.

The sod farm across the road, as she remembered it, was last used for a sod crop in 1994. It was being prepared for seeding in the middle of August 2007. Ms. Hayne described the soil in the area as a being sandy loam with some sand dunes and rolling in places. She testified that on August 14, 2007, the employees of the Respondent were preparing the sod farm lands for planting. When they started to grade it to make it level for seeding the fine soil was blowing across the road onto the cabbage crop. The prevailing winds in the area are from the southwest. She telephoned and spoke to Barbara Christopher, one of the principals of the Respondent and asked her to stop working the lands that day. Mrs. Christopher indicated that they had 7 or 8 other fields that they could work on and consequently the work on the neighboring farm stopped.

The Respondent attempted to continue the grading of the sod farm lands on August 15, 2007, and this time were asked by another neighbour to stop because there was soil blowing on to his lands. There was no work done on August 16, 2007, but the Respondent again started to work its lands on August 17, 2007.

On that particular day it was particularly windy with the wind from the southwest. Ms. Hayne called Mrs.

Christopher again and testified that Mrs. Christopher replied that they were almost done and on this occasion they did not stop working the land.

Exhibits 8, 9 and 10, are photographs provided by the Applicant showing dust or fine sand blowing on Flanagan Road.

Exhibit #7 is a chart obtained from the Ministry of the Environment showing the hourly winds (direction/speed km/h) for the Port Col borne area for the month of August 2007.

The chart indicates that on August 14, 15 and 17, for at least some of the day there were winds from the southwest or the west/southwest or west peaking at levels of 52, 54 and 70 km/h respectively.

On August 24, 2007, Jennifer Allen Ph.D, a vegetable crop specialist with the Ministry of Agricultural, Food and Rural Affairs attended at the Salt Farm to examine the cabbage crop. Her report dated August 31,2007, was filed as Exhibit #12. She set out the 9 stages of cabbage growth which are: 1) cotyledon, 2) seedling, 3) 6-8 true leaf, 4) 9-12 true leaf, 5) precupping, 6) cupping, 7) early head formation, 8) head fill and 9) maturity.

Her report indicated that the plants she saw on August 24,2007, were primarily at stages 6 and 7. When plants reach the cupping stage the innermost leaves grow in an upright manner and are protected by the older leaves. At the early head formation stage the inner leaves develop as a ball-like structure of overlapping leaves. At this stage the inner leaves simply get bigger. This is important to note because the contamination at either the precupping or cupping stage can result in an unmarketable product as there is no mechanism to clean the heads prior to the head fill stage.

In field one, which is the cabbage field most heavily damaged, she observed cabbage plants with symptoms of sand blast damage to the outer wrapper leaves as well as soil particles within the developing heads and estimated that more than 75% of the plants she examined had soil associated with the developing heads. As such it would be nearly impossible to remove any contaminants from the developing heads and that portion of the crop would be unmarketable. The unmarketable crop was later plowed under resulting in a substantial loss to the Applicant.

Ms. Hayne testified that even after the Respondent's farm was seeded dust continued to blow from the farm and in fact a portion of the field on sand hills had to be reseeded in October because the seed had blown off.

WILLIAM H. SAULT

Mr. Sault, the Applicant, has resided on the Sault Farm since 1963. He testified that the sad farm took over the farm across Flanagan Road in the 1990's and that he had never had problems with soil degradation before the sad farm came. His recollection was that there were some wind breaks on the sad farm before the Respondent took over, but that the wind breaks and fence rows were all removed. He has wind breaks on his own property which he feels stops the wind from eroding his sand hills.

JULIE POLLARD

Julie Pollard is William Sault's sister. She stated that on a Thursday in the late part of August 2007, she was coming home from work and going to her brother's farm. When she came to the intersection of Flanagan Road and Bell Road, she could not see to drive because of the "brown out" created by blowing soil and had to stop until it calmed down a bit. She then had to take it easy until she got to her brother's farm on Flanagan Road. In cross-examination she stated that she did not see any of the Respondent's equipment in their field at that time.

CRAIG BOOKER

Mr. Booker owns property on the south comer of Booker Road and Town Line Road, both of which are shown on Exhibit #2. He also rents land on Case Road, east of the Respondent's sod farm, where he pastures beef cattle. He gave evidence that the summer of 2007 was "dry as a desert" and that his cattle were engulfed in the dust storm, which resulted in them not eating their feed. He also observed mud running from their noses.

SUZANNE HARDCASTLE

Suzanne Hardcastle resides on the east side of Sider Road, approximately 1 mile from the sod farm. She testified that on a Thursday in 2007, she came home from work and saw a really big dust or sand storm. The windows of her house were open and her house became contaminated with sand.

ANNE VERHALLEN

Anne Verhallen, who is employed by the Ontario Ministry of Agriculture, Food and Rural Affairs as a Soil Management Specialist, was qualified as a witness to give expert evidence about wind erosion control. Her curriculum vitae was provided to the Board and filed as Exhibit #18. She stated that wind erosion is a significant issue in Soil Management. There are 3 approaches to minimize wind erosion. The first is to rough or break the fetch or sweep of the wind across the field. This slows down the wind so that it picks up less soil. The second is to use a cover crop and the third to use some sort of a wind break. The best type of wind break would be fully matured trees, but this takes time and planning. Straw bales or snow fence can be used on a temporary basis in extreme situations.

She also testified that her recollection was that weather conditions in the summer of 2007 were horrendously dry and that it was the worst year for dryness and wind that she has seen since 1990.

WITNESSES FOR THE RESPONDENT

SCOTT CHRISTOPHER

Mr. Christopher testified that the sod farm business was started in 1958 by Bob Young, the father of his wife Barbara Christopher, that during its history the company has been awarded soil conservation awards and that in 2004 he and Barbara purchased the company from Mr. Young.

The company farms approximately 2000 acres of land with the main focus being sod production, other crops include corn, soybeans and wheat. Mr. Christopher is involved in all field operations. In order to keep track of the weather they have a weather station in the Lowbanks office to track wind and rain amongst weather conditions. The Lowbanks office is located approximately 1.5 miles from the subject farm.

Sod establishment takes approximately from 1.5 to 2 years. The best time for seeding in this area is mid August to the 15th of September; this information was confirmed by Exhibit #25, provided by the witness. This is a letter from Pam Charbonneau, Turf Grass specialist at the Ministry of Agriculture, Food and Rural Affairs. The sod farmer has a narrow window to plant his crop. All land must be worked carefully and be level and preparation itself can take up to 6 weeks to prepare for seeding. Exhibit #25 also states that: "working when soil is dry helps prevent soil structure damage".

The sod farm is located at Lot 39 and part Lot 38, Concession 3, Wainfleet. On July 31, 2007, the Respondent started to prepare the south field as they were still cleaning up the lands on the north side of the Kelly Drain. They started to work the ground August 9,2007 and started to level on August 15, 2007. After being contacted by the Applicant work was stopped by the Respondent.

Mr. Christopher stated that due to the narrow window for preparation and seeding, this was the only farm that was ready to be prepared at this time and that work has to proceed when they could although he tried to accommodate the neighbours. He also testified that if there were strong winds, notwithstanding the above, he would not have been working the lands. He did moderate his practice in the summer of 2007 by not preparing as much because of the extreme weather conditions.

BOB YOUNG

Mr. Young started the sod business in 1958 and purchased the subject farm in approximately 1984 or 1986. That particular farm had not been looked after very well and after acquiring it he drained the low spots and gathered up debris leveling the soil so that it would surface drain. The farm was also tiled in the early 1990's. Since the farm was purchase by his company it has always been cropped and on at least 2 occasions prior to 2007 had been used for sod.

He gave evidence that the process for preparing the farm for seeding is intense including approximately 15 passes across the property. The soil must be very level and solid-based with good surface drainage and worked to a fine seed bed before being fertilized. The prime planting time is between the middle of August and the middle of September.

Mr. Young testified that since the farm was acquired in approximately 1986 no tree lines have been removed. Fence lines, however, have been removed because they were broken down and with large equipment he needed the additional space to operate.

They also harbor quack grass which contaminates the sod fields.

DARYL BROWN

Mr. Brown has worked for the Respondent company for approximately 10 years as cash crop supervisor and field supervisor. He has been involved in the preparation of fields for sod. He was involved in working on the subject farm and confirmed the process for preparing the lands for seeding. He also testified that the Respondent made some adjustments to the usual practice because of the dry weather to keep as much moisture as possible in the soil and that they did less preparation in 2007 because of the conditions.

He also indicated that his practice is to try and work in the morning when his experience is the winds are lighter. The weather station information is available at the Lowbanks office and is available to all employees and he will look at it on a daily basis.

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 the 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, fiber and other agricultural or horticultural products.

Agricultural activities may include intensive operations that may cause discomfort or inconvenience 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, fiber and other agricultural or horticultural products.

It is in the provincial interest that in agricultural 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 Section 5 of the Act. Subsection 5( 1) of the Act provides as follows:

"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."

Disturbance is defined in Section 1 (1) of the Act:

"Disturbance means odour, dust, flies, light, smoke, noise and vibration." Agricultural operation is defined in Section 1 (1) of the Act as:

"Agricultural operation means an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward ." It includes turf grass production (Section 1(2)(c»

Farmer is defined in Section 1(1) of the Act as:

"Farmer means the owner or operator of an agricultural operation."

Section 1(2) provides that for the purpose of the definition of "Agricultural operation", agricultural operation shall be construed to include the processing by a farmer of the products produced primarily from the farmer's agricultural operation.

"Normal farm practice" as defined in Section 1 (1) of the Act is a practice that:

(a) Is conducted in a manner consistent with proper and acceptable customs and standards as established and followed in similar agricultural operations under similar circumstances, or

(b) Makes use of innovative technology in a manner consistent with proper advanced farm management practices".

THE ISSUES

1. Is the Applicant a person directly affected by a disturbance from an agricultural operation?

2. If the Applicant is entitled to bring this Application under Subsection 5(1) of the Act, does the disturbance complained of result from a normal farm practice?

FINDINGS AND REASONS

1. Is the Applicant a person directly affected by a disturbance from an agricultural operation?

II

The disturbance alleged is one of dust, which is one of the disturbances listed in the definition of "disturbances" in subsection 1(1) of the Act. The Board finds, based on the evidence that the Respondent operates an agricultural operation within the meaning of the definition in Subsection 1 (1) of the Act. In order to have standing to apply under Section 5 to the Board for a determination as to whether the disturbance results from a normal farm practice, the Applicant must be found to be a person "directly affected by a disturbance". If an Applicant establishes standing by providing sufficient evidence to show that he or she is a person directly affected by a disturbance from an agricultural operation, then the onus of proof shifts to the Respondent to prove on the balance of probabilities that the alleged disturbance results from a normal farm practice. In other words, the onus is on the Applicant to prove that he or she is directly affected by a disturbance from an agricultural operation in order for this Board to have jurisdiction.

This Board has previously held that there is a threshold test for disturbance and that once the threshold has been passed the degree in quantity of the disturbance is not relevant (Lucas v. Terpstra et. al; NFPPB 2001 unreported). If the significance of the alleged disturbance is not of such a level as to "affect" the Applicant, the Board will be without jurisdiction.

What is the threshold test? Subsection 2( 1) of the Act provides that a farmer is not liable in nuisance to any person for a disturbance resulting from an agricultural operation carried on as a normal farm practice. Subsection 2(2) of the Act states that no Court shall issue an injunction or other Order that prohibits a farmer from carrying on the agricultural operation because it causes or creates a disturbance. The Legislature has transferred from the Superior Court to the Board the ability to deal with nuisance claims relating to disturbances as defined in the Act when the aggrieved person is seeking an injunction or Order prohibiting a farmer from carrying on an agricultural operation. Consequently it would seem that the threshold test for disturbance is one and the same as the Common Law test for nuisance in civil actions. It is not unreasonable to expect an Applicant to establish the same level of interference with use and enjoyment of his property in an Application under Section 5 of the Act, as he would have to establish if he were making a Claim for damages on the basis of nuisance in the Superior Court. A consistent approach is absolutely necessary.

Has there been an unreasonable interference with the use and enjoyment of the lands of the Applicant?

The Applicant alleges that his cabbage crop located on the Sault Farm has been damaged by the dust or sand that which has blown onto his crop from the Respondent's sod operation. Based on the evidence of Judy Hayne and William Sault as well as the other witnesses for and Applicant and the documentary evidence provided by the Applicant, the Board finds on the balance of probabilities that the dust or sand blown onto the cabbage crop came in at least some part from the sod farm of the Respondent and that the damage to the cabbage crop meets the threshold test.

Consequently the Applicant has been directly affected by the disturbance emanating from the Respondent's agricultural operation.

2. If the Applicant is entitled to bring this Application under Subsection 5( 1) of the Act, does the disturbance complained of result from a normal farm practice?

The inquiry into whether an agricultural operation qualifies as a "Normal Farm Practice" is both fact and site-specific. The determination must be made in a proper context, involving consideration of many relevant factors. These factors will vary from case to case and factors which may have formed the strong basis for a decision in another setting may not be as conclusive in another.

The Board finds that to it's satisfaction that the following factors have been proven by the parties and are relevant to this factual and site-specific analysis:

1. That the weather conditions in August 2007 were extremely dry and windy in the Wainfleet area;

2. That the sod farm had only been used for sod production on 2 occasions previously in the past 20 years with no complaints arising from neighbours on those occasions;

3. That the process for preparing lands for sod production is a lengthy and meticulous operation;

4. That the "window" for preparation and seeding of lands for sod production is from the middle of August to the middle of September;

5. That the Respondent stopped working the lands on several occasions when requested by the Applicant or another neighbour;

6. That the Respondent maintains a weather station and refrains from working land in extremely windy conditions;

7. That the Respondent modified its usual practice in reducing the amount that the lands were worked as a result of the extreme weather conditions in the summer of 2007;

8. That the Respondent worked lands for sod production in close proximity to a vegetable farm across the road;

9. That the vegetable farm existed prior to the existence of the sod farm;

10. That there was no evidence as to damage by the dust or sand to any other vegetable crop of the Applicant's;

11. That the Applicant chose to plant part of his cabbage crop close to a road and a nearby farm sometime used for sod production;

12. That the Applicant did not take steps to obtain crop insurance for the cabbage crop;

13. That the damage to the cabbage crop was devastating and resulted in a large loss to the Applicant.

Counsel for the Applicant referred us to the case of Pyke v. Tri Gro Enterprises Ltd., and specifically the reasons for judgment of Sharpe J. A .. Two of the considerations that Sharpe J. A. found to be relevant in this case for consideration were the relative timing of the establishment of the farming operation and the occupancy of those who complain of the disturbance it creates as well as the degree and extent of the disturbance created. Those are only two of the many relevant considerations in this case.

DECISION

After careful consideration of all of the above noted relevant factors and balancing the competing interests referred to in the preamble to the Act, the Board finds that the conduct of the Respondent's agricultural operation is consistent with a normal farm practice. The Board therefore dismisses the Applicant's application.

DATED: May 16, 2008

Glenn C. Walker - Chair

Marty Byl, Member

Roger Pelissero, Member