Normal Farm Practices Protection Board 1 Stone Road West, 2^nd Floor Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: NFPPB@ontario.ca

Commission de protection des pratiques agricoles normales 1 Stone Road West, 2^e étage Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca

2009ONNFPPB04

DATE OF DECISION: November 2010

STATUE: Farming and Food Productions Act, 1998

BETWEEN:

Brunato Farms Ltd..

and

Sabelli Boiler Works Inc. and Frank Sabelli

and

The Corporation of the Municipality of Leamington

NORMAL FARM PRACTICES PROTECTION BOARD

IN THE MATTER OF the Farming and Food Production Protection Act, S.O. 1998, Chapter 1.

AND IN THE MATTER OF an application to the .Board, under Section 5 of the Farming and Food Production Protection Act -1998,

S.O. Chapter 1, for a determination as to whether a disturbance results from a normal farm practice.

Board File No.:2009-04: Brunato Farms v Sabelli

BETWEEN:

Brunato Farms Ltd..

and

Sabelli Boiler Works Inc. and Frank Sabelli

and

The Corporation of the Municipality of Leamington

Anthony H. Little, Q.C., Vice Chair Marty Byl, Member

Tom Field, Member

Applicant

Respondents

Added Third Party

I APPLICATION

1. Brunato Farms Ltd. filed an Application for a Hearing before The Normal Farm Practices Protection Board (hereinafter referred to as the "NFPPB" or the "Board'' respectively) pursuant to Section 5 of The Farming and Food Production Protection Act, 1998,

S.0. 1998, Chapter 1 (hereafter referred to as the "Act") .

2. The Complaint against the Respondent, Frank Sabelli, related to Noise, Odor, Vibration, Drainage and Fly Infestation Disturbances generated or emanating from activity associated with the use of the Respondent's property. It was subsequently discovered that the lands in question were owned by Sabelli Boiler Works Inc.. The latter was added as a Party Respondent at a Pre-Hearing and Settlement Conference convened by the NFPPB.

3. The Corporation of the Municipality of Leamington sought to intervene as an Added Party and was added as a Party Respondent at a Pre-Hearing and Settlement Conference convened by the NFPPB.

4. The NFPPB agreed to accept the Application as it related to possible disturbances of Noise, Odor, Vibration, Drainage and Fly associated with the activities carried on at 123 Mersea Road Three, Leamington, Ontario, which lands were originally stated to be in the ownership of Frank Sabelli.

II PRE-HEARING EVENTS

5. 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 Helmut Spieser.

6. The Mediation proved not to be successful. In the result that the matter was referred to the NFPPB for a Hearing.

7. Counsel for the Parties and the Parties convened for a Pre-Hearing Conference on January 13, 2010 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 the above described names were added to the Style of Cause.

8. The Hearing requested was scheduled to commence on November 15, 2010.

ill HEARING

9. When the Hearing convened, the following participated:

a) Normal Farm Practices Protection Board

1. Anthony Little, Q.C. - Vice Chair

2. Marty Byl - Member

3. Tom Field - Member

4. Finbar Desir ·· Secretary to the NFPPB

b) Applicants

1. Peter Brunato

2. Chris Del Greco

3. James H. Cooke - Counsel to the Applilcants

c) Respondents

1. Frank Sabelli

2. Philip S. Chandler - Counsel to the Respondents, Frank Sabelli and Sabelli Boiler Works Inc.

3. Brian Sweet - Counsel and Clerk, Director of Corporate Services for the Respondent, The Corporation of the Municipality of Leamington

4. 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.

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 Helmut Spieser, the Board's mandate is to determine whether or not a disturbance exists and, if so found, whether it can be determined to be the result of a normal farm practice.

IV EVIDENCE AT HEARING:

12. At the outset, the Board was advised by the three Counsel that there were on-going, meaningful discussions regarding possible resolution of the differences of the Parties and that they would appreciate an opportunity to continue those discussions. That delayed the start of the Hearing; but, in the interim, the Board attended at the site to view the property and those of its adjoining and abutting neighbors.

13. Unfortunately, resolution was not reached. Accordingly, the Hearing commenced with

. .

Mr. Little completing his opening remarks, explaining the processes and securing data as to the Parties and their representatives etc. ·

14. The Board determined that it would embark upon a bifurcated Hearing process in which the first step would be to determine the issue of the jurisdiction of the Board to hear this matter. The Board's concern was that there may not be jurisdiction in that the operation of the Respondent Corporation was not capable of being classified as an agricultural operation as that term is defined in the Act. Following completion of consideration of that issue, the Board would continue, if necessary, to determine the remaining two issues: Was there a nuisance or series of nuisances established on the evidence presented to the Board? and Was that nuisance a result of a normal farm practice? within the mandate of the Act and the Board's Rules of Procedure.

V DECISION:

15. Following the completion of the first day's ac:tivitit;:s and the calling of some evidence on the preliminary issue, the Hearing adjourned and rnconvened the next following day at 9:00 am. The Parties continued to present evidence through that morning.

16. Upon the completion of evidence and the presentation of arguments on the preliminary issue the Board retired to consider that issue and, upon return, indicated to the Parties that it would reserve its decision on that issue.

17. The Respondent, The Corporation of the Municipality of Leamington, then began presenting evidence in the late morning until the noon recess. The Hearing reconvened at 2: 15 pm. Evidence continued to be presented by the: Respondent, The Corporation of the Municipality of Leamington, until a mid-afternoon recess when a number of delays developed.

18. The Board addressed the Parties as to the continuing course of the Hearing. The Hearing was then further recessed to allow the Parties and their Representatives to confer further.

19. Ultimately, the Board was then advised that the Parties, through their respective Counsel, had reached a Settlement of the Issues outstanding between them. They sought the Board's Direction as to the manner in which their Resolution m ight be best addressed.

20. The Board declined to approve the detail of any Resolution or Settlement determining that, to endorse any Agreement which may have been reached by the Parties, was beyond its jurisdiction as found in the Board's enabling Statute.

21. 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.

22. 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.

23. The Applicant through Counsel and the Respondents, through Counsel, confirmed that the Applicant would be withdrawing its Complaint with the Consent of all Respondents.

VI. ORDER OF THE BOARD:

24. At the request of Counsel for the Applicant, and with the Consent of Counsel for the Respondents, the Board Ordered that Application ht! endorsed "Withdrawn With Prejudice as to any and all events or circumstances prevailing as at 5:00 pm on November 16, 2010 with respect to the Parties to these Proceedings".

Dated November , 2010 at Guelph, Ontario.