Normal Farm Practices Protection Board
Commission de protection des pratiques agricoles normales
3rd Floor 1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3549 Fax: (519) 826-3259
3e étage 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3549 Téléc.: (519) 826-3259
Normal Farm Practices Protection Board
Email cover and full decision to reception@canlii.org
Dubois v. Burkhardt 2009 ONNFPPB 54
2009-09-10
2008-03
STATUTE:
Farming and Food Production Protection Act 1998
HEARING:
BETWEEN:
Larry Dubois Paula Dubois-- Applicants
and
Walter Burkhardt-- Respondents
NORMAL FARM PRACTICES PROTECTION BOARD
IN THE MATTER OF THE FARMING AND FOOD PRODUCTION PROTECTION ACT S.O. 1998, C.1.
AND IN THE MATTER OF AN APPLICATION TO THE BOARD UNDER SECTION 5 UNDER OF THE FARMING AND FOOD PRODUCTION PROTECTION ACT 1998
BOARD FILE NUMBER: 2008-03
Before: Glenn C. Walker, Chair Helene Blanchard, Member Roger Pelissero, Member
Between: Larry Dubois and Paula Dubois, Applicants
and
Walter Burkhardt and 1434343 Ontario Inc., Respondents
APPEARANCES:
Applicants: Peter Dubois - Agent Respondents: Brigitte Gratl, J.D. - Counsel
DECISION
PURPOSE OF THE HEARING
This application was made by the Applicants for relief under Section 5 of the Farming and Food Production Protection Act, 1998 (the "Act") regarding noise and vibration throughout the years 2002 to 2008, inclusive, emanating from the vineyards used as part of the agricultural operation of the Respondent, Walter Burkhardt, at 282 East West Line, R.R.#3, Niagara-on-the-Lake, Ontario. The hearing took place in the Municipal Chambers of the Town of Pelham, 20 Pelham
Town Square, Fonthill, Ontario, on March 17, 18, 19 and 20, 2009. The hearing
continued on June 15, 16, 17, 18 and 19, 2009 at the Municipal Chambers of the Town of Lincoln, 4800 South Service Road, Beamsville, Ontario. A site visit was conducted by the panel on June 15, 2009.
The Applicants allege that they are persons directly affected by a disturbance from an agricultural operation operated by the Respondents and seek 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 noise and vibration rising from the vineyard operation on the farm of the Respondent, Walter Burkhardt.
PROPER PARTIES
The application was originally made by Larry Dubois. At the prehearing conference the Vice Chair determined that both Larry Dubois and his wife, Paula Dubois, were the appropriate and correct Parties who were making this complaint to the Board as they were the owners of the property upon which it was alleged that the nuisance was having a negative effect. This ownership was confirmed
by Exhibit # 27, entered at the hearing.
The application was originally brought against Walter Burkhardt. At the prehearing conference Ms. Gratl, Counsel to the Respondent Walter Burkhardt, confirmed that the correct corporate name of the Respondent was 1434343 Ontario Inc. and that Mr. Burkhardt was its likely guiding hand, officer and director and likely sole shareholder thereof. Accordingly the Vice Chair changed the name of the Respondent to the numbered company.
During the hearing, evidence was provided to the Board (Exhibit # 28) showing that the actual owner of the lands from whence the alleged disturbance was
emanating was Walter Burkhardt personally. Accordingly the Board added Mr. Burkhardt personally as a Respondent together with the numbered company.
FACTS AS FOUND BY THE BOARD
Walter Burkhardt immigrated to Canada in approximately 1995 from Germany. In Germany he had studied grape growing and wine making, opening a winery there in 1965. No challenge was made to the fact that he is an experienced grape grower and wine maker having approximately 54 years experience at age 72.
In 1995 and 1996 he purchased certain farm lands in Niagara-on-the-Lake more specifically being property identifier numbers 46367-0027, 46367-0032 and 46367-0051 (Exhibit # 28). These lands are of such a configuration that they literally surround the lands now owned by the Applicants being property identifier number 46367-0033.
In April 2002 the Applicants purchased the smaller acreage surrounded by the Burkhardt lands from Elmer Neufeld. The Dubois lands have an acreage of approximately 8.475 acres and are accessed by a 40 foot wide driveway off of East West Line over which Burkhardt has a right-of-way. The Dubois have vineyards on approximately 5.5 acres of the parcel. There are also two houses on their parcel of land; one being their own residence and the other, a rental house.
Just off of the right-of-way there is a house and a trailer on Mr. Burkhardt's property, Mr. Burkhardt resides in the trailer and l11e house is occupied by his farm workers.
Elmer Neufeld testified that he gave Mr. Burkhardt the first opportunity to purchase the Dubois property when he decided to sell it in the fall of 2001. Mr. Burkhardt admitted that he wished he had purchased the property after it was sold to Dubois.
During the period 2002 to 2008, Mr. Burkhardt has used propane bird bangers almost exclusively to keep the birds away from his grape crop. The bird bangers typically used in the area are located on a tri-pod and operated by propane and an electrical timer. The recoil of the cannon causes the cannon portion of the bird banger to rotate freely on a ball bearing. Between 2002 and 2008 Mr. Burkhardt's use of the bird bangers on his farm has increased, despite the fact that the preponderance of evidence was that bird pressure in the area was low and had not changed. In addition he has interfered with the operation of the bird bangers by placing some of them in an enclosure so that they can not turn freely or by tying them down to point in one direction. The bird bangers which were fixed so that they would not swivel were pointed at the residences on the Dubois property.
The use of the bird bangers on the Burkhardt property has had a very negative effect on the Applicants, their tenants and guests over the last 6 or 7 years. Personally it has caused loss of sleep and loss of enjoyment of their property. Financially it has required them to replace all of the windows in their own residence and has been a source of aggravation for their tenants. It is most likely, as well, that the manner of use of bird bangers on the Burkhardt property would adversely affect the market value of the Dubois property.
Mr. Hugh Fraser was called by the Applicants as a witness. He is an Agricultural Engineer with the Ontario Ministry of Agriculture, Food and Rural Affairs and is acknowledged as the expert on best management practices for bird bangers. He introduced a four page Fact Sheet on best management practice for bird bangers which has been endorsed by the Grape Growers of Ontario. The Board accepts
his evidence that on his visit on September 8, 2008 to the Burkhardt farm and on his visit on October 8, 2008 to the Dubois property, the bird bangers on the Burkhardt property did not conform to the Guidelines set out in the Fact Sheet dated January 2009 or with the previous Fact Sheet.
The evidence showed that the bird bangers on the Burkhardt farm had been operated outside the season when grapes are reaching veraison and after harvest had been completed, that they have been operated at night later then one half hour after sunset and prior to one half hour before sunrise, that they have been operated closer than the suggested set back of 125 metres (41O feet) from a residence and that they have been interfered with so that they were pointed in the direction of the neighbour's home because some of the bird bangers were tied down or caged and were not allowed to swivel normally.
The Board finds that the best management practices for vineyards as set out on pages 2 and 3 of the Fact Sheet of January 2009 (Exhibit #4) would be considered to be Normal Farm Practice in the Niagara Region.
The Respondents called Robert Chambers, also an Agricultural Engineer with OMAFRA. He has primarily been involved with swine and sheep issues but has dealt with environmental issues as well. He prepared four scenarios for Mr. Burkhardt with respect to his use of bird bangers, all of which scenarios would comply with the Guidelines contained in the January 2009 Fact Sheet. On cross examination however, he admitted that the Guideline's set backs are only a minimum requirement for bird banger use.
CREDIBILITY
The evidence of Walter Burkhardt conflicted in some part, with evidence given by the Applicants' witnesses. The Board has had the opportunity to observe the witnesses in both direct and cross examination. In those aspects that the evidence of Walter Burkhardt differs from the evidence of the witnesses for the Applicants, the Board prefers the evidence of the Applicants' witnesses as being more reliable.
ABSENCE OF THE RESPONDENTS' COUNSEL
As the hearing was not concluded during March 17, 18, 19 and 20, 2009, a notice of hearing continuation was issued by the Board for Monday, June 15 to Friday June 19, 2009 inclusive. The notice of hearing continuation was dated April 9, 2009.
The Board office received a fax communication from counsel for the Respondents at its office on June 15, 2009 at 1:29 a.m. as per the fax date stamp indicating that counsel would not be attending because of other commitments but that her assistant would be in attendance to observe
proceedings only and to deliver the letter received by fax. She also indicated that her client would be in attendance. On June 15, 2009 at 9:15 a.m. the hearing reconvened. Neither the Respondent, Walter Burkhardt nor his Counsel or her assistant were present. No notice of a request for an adjournment had been given to the Applicants. The Board requested the Board's secretary to contact Counsel's office to advise her that we would give her until 1:00 p.m. to appear and that if she did not then we would proceed in her absence. The hearing reconvened at 1:15 p.m. at which time Mr. Burkhardt was present but not his Counsel.
The Board proceeded to hear the evidence of Larry Dubois and Paula Dubois throughout the afternoon of June 15 and through June 16, 2009. Counsel for the Respondent appeared at 3:00 p.m. on June 16, 2009 and the hearing was adjourned until 9:00 a.m. on June 17, 2009 to allow her to cross examine both Larry and Paula Dubois on that day.
The Board is of the opinion that Counsel for the Respondents should have brought a motion for an adjournment prior to June 15, 2009 on notice to the Applicants. In failing to do so or in failing to have an agent present to request an adjournment on the morning on June 15, 2009, the Applicants were inconvenienced and were entitled to proceed. In any event, the Board has sufficient evidence before it, excluding the evidence of Larry and Paula Dubois, to make a finding of fact that they have been directly affected by a disturbance emanating from the Respondents' agricultural operation.
ll NTERPR ETER
During the first portion of the hearing in March 2009, Mr. Burkhardt was assisted at the hearing by Mr. Budaker who is an independent certified Court interpreter for the German language. When the hearing reconvened in June, Counsel for the Respondents indicated that she and her client were not content to use Mr.
Budaker for Mr. Burkhardt's testimony. They proposed to use Leon Perel as an interpreter for Mr. Burkhardt but after examining him, the Board was of the opinion that because of his business relationship with Mr. Burkhardt he could not be relied upon as being an independent objective interpreter.
The Board then made arrangements with the Office of the Reporter to have Ms. Gratl supplied with the names and telephone numbers of several agencies that provide certified interpreters.
When it came time for Mr. Burkhardt to testify no interpreter was available and he proceeded to give his evidence in the English language. The Board is of the opinion that his evidence was clear and that he was perfectly capable of expressing himself in the English language for the purposes of this hearing.
ISSUES
Are the Applicants persons directly affected by a disturbance from agricultural operation?
If the Applicants are entitled to bring this application under subsection 5(1) of the Act, does the disturbance complained of result from a Normal Farm Practice?
The Board finds that there is more than sufficient evidence on the balance of probabilities to show that the Applicants have been directly affected by both disturbances of noise and vibration as a result of the operation of bird bangers on the neighbouring farm owned by Walter Burkhardt. The onus then shifts from
the Applicants to the Respondents to establish that the disturbance results from a Normal Farm Practice.
The Board finds that the use of bird bangers on the Walter Burkhardt farm during the years 2002 to 2008, inclusive, was not a Normal Farm Practice. The Normal Farm Practice for use of bird bangers in vineyards in the Niagara Region are the best management practices set out at pages 2 and 3 of the Fact Sheet (Exhibit
#4) and its predecessor. The Board has already made a finding that Mr. Burkhardt was not in compliance with the Guidelines.
ORDER
The Guidelines contained in the Fact Sheet dated January 2009 provide for a suggested setback of 125 metres (410 feet) from a residence. This is a minimum distance only and the Board is entitled to take into account in making its decision other factors in the present situation.
Because of the unusual configuration of the lands and taking into account the low bird pressure in the area, Mr. Burkhardt will have to maintain a setback of 183 metres (600 feet) for bird bangers and all other acoustical bird deterrents from either of the Dubois residences. Non-acoustical bird deterrents such as netting, kites etc. may be used on his own lands within the 183 metre (600 foot) limit.
The increased set back should still allow Mr. Burkhardt to use acoustical deterrents outside of the 183 metre (600 foot) limit in the vineyards on the east side of his property near the woods, where he claims a large number of birds congregate and feed on his grape crop.
Accordingly, the Board Orders that the Respondents modify their practice in the use of bird bangers and other acoustical bird deterrent devices as follows:
The Respondents shall not place or use bird bangers or other acoustical bird deterrent devices within a 183 metre (600 foot) radius of either the Dubois family residence or the Dubois rental house;
The Respondents shall use only netting or other non-acoustical bird deterrent devices within the 183 metre (600 foot) radius described above;
The Respondents shall not use bird bangers earlier than 4 weeks prior to veraison;
The Respondents shall cease to use bird bangers immediately after harvest. Netting or non-acoustical devices must be used for ice wine grapes;
The Respondents shall operate the bird bangers during day light hours only between 30 minutes before local sunrise and 30 minutes after local sunset as set out in Table 1 to the Fact Sheet (Exhibit #4);
The Respondents shall not place adjacent bird bangers any closer to each other than 75 metres (250 feet);
The Respondents shall not tie down or in any way inhibit the bird bangers from swiveling normally;
The Respondents shall use light sensor override devices to make sure that all bird bangers cannot operate at night.
DATED: September 10, 2009
Glenn C. Walker - Chair
Helene Blanchard - Member
Roger Pelissero - Member