Wright v. Sajnovic, 2010 ONNFPPB 2

Wright v. Sajnovic

2010 ONNFPPB 2

DATE OF DECISION:

2010-09-27

2008-07

Farming and Food Production Protection Act 1998

BETWEEN:

Earl Wright -- Applicant

and

Stanrika Farms Ltd. -- Respondent

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, regarding alleged disturbances of odour, noise and flies emanating from the turkey barns used as part of the agricultural operation of the Respondent at R.R. #5, Orillia, Ontario,' The Hearing took place in the Municipal Chambers of the Township of Springwater, 2231 Nursery Road, Minesing, Ontario, on July 6 and 7, 2010. A site visit was conducted by the panel on July 6, 2010.

The Applicant alleges that he is a person directly affected by disturbances 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 disturbances are ones of odour, noise and flies from the operation of turkey barns on the farm of the Respondent.

Background Facts

The Applicant, Earl Wright, is the owner of part Lot 1, Concession 11, in the Geographic Township of Mara, in the Township of Ramara, in the County of Simcoe, which consists of approximately 23 acres in the north east corner of the said lot. These lands shall be referred to hereafter as the "Applicant's lands". The Respondent is the owner of certain lands lying immediately to the west of the Applicant's lands in said Lot 1, Concession 11. These lands shall be referred to hereafter as the “Respondent's lands". Both the Applicant's lands and the Respondent's lands front on Concession Road 12 while the Town Line road forms the easterly boundary of the Applicant's lands

The Applicant's lands are basically grass lands and low lying scrub such as sumac. There is an abandoned dwelling house located in the south west corner of the said lands where the scrub growth is heavier.

The Respondent's lands contain, inter alia, two turkey barns, both of which barns are low-lying one-storey buildings located parallel to the lot line between the Applicant's lands and the Respondent's lands. The first barn constructed in approximately 1987 is 540 feet long by 40 feet wide. This barn is called barns 4 and 5 by the Respondent. In 2005 the Respondent constructed a second barn directly behind barns 4 and 5 separated by approximately 120 feet. These barns are called barns 6 and 7 by the Respondent and the building is 430 feet long by 50 feet wide. Each building contains approximately 20,000.00 square feet. Barns 4 and 5 have a side yard setback from the lot line between the Applicant's land and the Respondent's land of 20 feet and barns 6 and 7 have a' side yard setback of 30 feet according to Mr. Sajnovic.

Both barns have exhaust fans only on the east side facing the Applicant's lands. There is also a row of mature trees along the mutually shared property line.

The Applicant purchased his lands in approximately 2005 from his father and brother who had previously acquired the lands many years ago from the Applicant's aunts. An abandoned dwelling-house on the Applicant's lands has not been occupied within recent memory and the Applicant uses the property for hunting deer, partridge, coyote, wolf, but mostly wild turkeys. There was also some evidence that the Applicant used the property for target practice with his son.

The Respondent's corporation uses its abutting property as part of a larger agricultural operation. Two of the principals of the corporation, Stan Sajnovic and his wife, Josephine, have been in the poultry business for approximately 46 years. They started in 1964 on their other nearby farm located at Lot 2, Concession 12, with a turkey operation and later acquired the Respondent's lands, consisting of approximately 80 acres, about 25 years ago. This farm was used to raise wiener pigs for awhile but when the Respondent acquired turkey quota barns 4 and 5 were constructed on this property in 1987.

The Respondent presently uses the barns located on the Respondent's lands to raise broiler turkeys which are shipped at 10.5 weeks when they weigh approximately 11.5 pounds. There are not always turkeys in the barns depending on the time of year; the big turkey seasons being prior to Thanksgiving and Christmas and in the summer for the barbeque season. Crop is in the barn for approximately 40 weeks out of the year. The exhaust fans do not run at all when the barns are empty and run from time to time when there are turkeys in the barns depending on the temperature etc.

The Applicant has alleged that he has been affected by disturbances in the nature of noise, odour and flies emanating from the Respondent's agricultural operation on the Respondent's lands. All three alleged disturbances affect his use of the property for hunting wild turkeys. The Applicant stated in evidence that one could not properly call the wild turkeys because of the noise from the fans and the odour emanating from the barns, especially when the fans are running, is unbearable. He stated that the noise and the odour were worse in the south west corner of the Applicant's lands near the abandoned dwelling. This area was the best area for hunting turkey as it was more overgrown.

Mr. Wright also indicated that he sometimes uses the Applicant's property for target practice with his son and found the noise from the barns interfered with him giving verbal instructions to his son when teaching him how to shoot He also gave evidence that the family used to go to the Applicant's lands to cut a Christmas tree but now buy one rather than cut one because of the odour.

Mr. Wright further stated that in the spring from late April to late May the black flies are heavier on the Applicant's lands with the worst concentration being closer to the barns.

The Applicant has also made an attempt to sever off three residential lots on the Applicant's lands but the application for consent to sever and the minor variance were dismissed partly because they could not meet the MDS requirements.

As a result of the Applicant's complaint, Robert Chambers, who is an agricultural engineer with OMAFRA attended at the site on two separate occasions. He gave his evidence after he had been confirmed as an expert to give evidence in relation to poultry farming practices. In a letter to the Board dated February 25, 2010 (Exhibit #10) he summarized his visits on June 23, 2009 and October 9, 2009. On his first visit he toured the barns on the Respondent's lands, stating:

"The barns were empty at the time of my visit, as the barns were between crops. The cleanliness of the barns was excellent. No manure was evident anywhere surrounding the barns. The barns had been washed inside and out. There was no evidence of any flies or odours from the barn as the ventilation system was shut off. There was no noise as well. There is a row of coniferous trees located next to the Stanrika - Wright property line that would assist in trapping any dust being emitted from the barns. Generally I found the operation to be a clean, well run operation."

On October 9, 2009, at Mr. Wright's request, Mr. Chambers again attended the site this time on the Applicant's lands. In relation to that visit he wrote:

"While· I was on the site the presence of odour from the barn was noticeable, but only in the immediate vicinity of the barns. Further from the barns, closer to the road, there was only the faintest of odours. It was a cool and wet day, and it is possible that odours would have a stronger presence given different climatic conditions. There was some noi'se from the fans, but the vegetation tended to muffle the noise. There was no evidence of dust or flies on the day of my visit."

On page 3 of his letter he finally concluded:

"While I do not doubt Mr. Wright's claim that he is being impacted by the turkey barns, from the evidence that I have seen, Stanrika Farms is operating their barns very professionally. While I did witness some odours immediately adjacent and downwind of the barns there is nothing to suggest that Stanrika Farms is generating more odours than one would expeGt for the size and type of operation. The noise was consistent with an operation of this size as well. In my two visits to the site, I did not see any evidence of dust or flies. Again, there may well be dust and flies at certain times of the year, but from my two visits, I could not find any evidence of either."

The Board also heard evidence from Stan Sajnovic who started his turkey operation on the home farm at Lot 2, Concession 12, in 1964. He stated in his evidence that he was very strict about meeting all rules and regulations and in 46 years of business had not had any disease or other problems with his turkey operation. He has four other neighbours close to him and none have had any complaints in connection with his operation. The Applicant admitted that Mr. Sajnovic had a good reputation in the industry. He was a director of the Ontario Turkey Marketing Board for 21 years and also a director of the Canadian Turkey Marketing Agency for 21 years.

There are some discrepancies in the evidence concerning compliance with zoning bylaws and MDS II in connection with the construction of the two barns. Mr. Sajnovic believed that he had complied with all applicable laws and regulations in the construction of these barns. When the first barn was built in 1987 the applicable zoning by-law was By-Law No. 1368. Unfortunately all· files relating to the issuing of this building permit have been destroyed and the building inspector is deceased. James Newland has been the by-law enforcement officer for Mara Township since July 2001. He testified that By-Law 1368, which was enacted in 1979, did not require compliance with MDS II, and required an interior side yard of 15 meters whereas the side yard as established by the Applicant's surveyor (Exhibit #13) shows a setback of 5 metres. Mr. Newland was not aware that any minor variance had been granted for this lesser side yard. He stated in cross-examination however, that the issuer of the building permit may have mistakenly used Schedule "C" to the By-Law which was for a single family dwelling house as opposed to Schedule "D" which contained the provisions for non-residential uses.

By-Law 1368 was replaced by By-Law' No. 2005.85 passed on October 24, 2005. The building permit for barns 6 and 7 was issued on May 17, 2005, before the new zoning by-law came into effect. The application for building permit for barns 6 and 7 was approved with a 30 foot side yard setback by the former Township of Mara; however, at the time that the building permit was issued, by-law 1368 appears to have required an interior side yard of 15 metres.

Since MDS II did not come into effect until By-Law 2005.85 came into effect on October 24, 2005, neither barn would have had to comply with MDS II. In his materials Mr. Chambers supplied two MDS II calculations, calculation one based on no existing capacity and calculation two based on an existing capacity of 10,400 units. Calculation one would have required a MDS II minimum setback to the nearest lot line of 17 metres and calculation two would have required a minimum setback to the nearest lot line of 16 metres. By-Law 1368 required a setback of 15 metres which is only slightly under the MDS II requirements. In any event it would appear that neither barn complies with the interior side yard requirement for By-Law 1368 despite the fact that a building permit was issued to Stanrika Farms Ltd. in 2005 for a 30 foot setback (Exhibit #17) and the fact that barns 4 and 5 were constructed, according to Mr. Sajnovic's evidence, in accordance with the building permit issued at that time.

LAW AND RATIONAL

The Legislation

This Board was established by and this application brought under the Farming and Food Production Protection Act, 1998 (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 or 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."

"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 I

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

The Issues

Is the Applicant a person directly affected by a disturbance from an agricultural operation?
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 onus of proof is on the Applicant to establish that he is a person directly affected by one of more of the disturbances set out in subsection 1 (1) of the Act. Once that has been established then the onus of proof shifts to the Respondent to prove on the balance of probabilities that the alleged disturbances result from a normal farm practice.

The Position of the Applicant

The Applicant submits that the threshold test for a disturbance, as set out in

Richardson v. Fox and Britnell v. DeBoer and other cases from this Board is the same test as for the law of nuisance in civil courts; and that the disturbances affecting the Applicant were an unreasonable interference with the enjoyment by the Applicant of the Applicant's lands. The Applicant further submits that the Respondent has failed to meet the onus of proving a normal farm practice. It did not call evidence as to any comparatives in similar: broiler turkey operations when the side yards were reduced to below legal limit.

The Respondent's Position

The Respondent submits that the Applicant has not shown that there has been an unreasonable interference with the use of his lands and therefore has not met the threshold test. In the alternative, the Respondent submits that if there has been a disturbance which affected the Applicant, it result from a normal farm practice notwithstanding that MDS II has not been met.

Analysis

This Board has previously held in a number of cases that the threshold test for a disturbance is one and and the same as the common law test for nuisance in civil actions.

In Pyke v. Tri Gro Enterprises Ltd. [1999] O.J. NO. 3217 (Ontario Superior Court of Justice), Ferguson J. instructed himself in the law of nuisance at paragraphs 202 through 206 inclusive:

"The fundamental issue in a nuisance claim is whether, taking into account all of the circumstances, there has been an unreasonable interference with the use and enjoyment of the plaintiffs' land.

In this case, the plaintiffs rely on the alleged injury to their health, comfort and convenience, and the alleged depreciation of the resale value of their lands.

To establish nuisance, the plaintiffs must show substantial interference which would not be tolerated by the ordinary occupier in their location. The test is objective. The interference must be repeated or continuous.

In considering the interference, the Court must consider the type of interference, the severity, the duration, the character of the neighbourhood, and the sensitivity of the plaintiffs' use of their lands. With respect to the severity of the interference, it is not actionable if it is a substantial interference only because of the plaintiffs' special sensibilities. With respect to the character of the neighbourhood, the Court should consider the zoning, whether the defendants' conduct changed the character of the neighbourhood and the reactions of other persons in the neighbourhood.

The Court must balance these considerations against the value of the defendant's enterprise to the public and the defendant's attitude towards its neighbors. The Court must consider whether the defendant is using the property reasonably having regard to the fact that the defendant has neighbours. The Court should consider whether the defendant took all reasonable precautions."

After an analysis of the' evidence in accordance with the statements of law set out in the above quotation, the Board must be able to find on the balance of probabilities that the evidence supports a finding that the Applicant has been directly affected by the disturbance. Has there been an unreasonable interference with the use and enjoyment of the Applicant's lands? The Applicant makes no allegation of a depreciation of the resale value of his lands or of injury to his health or those of his invitees. His evidence, if accepted, is directed towards their comfort and convenience alone.

The evidence discloses that the neighbourhood is designated as agricultural in both applicable zoning by-laws. The Applicant's lands have not been used for residential purposes within recent memory and are presently unused for anything other than hunting and a shooting range. The Respondent's lands have been used for some sort of livestock operation for at least 25 years.

With respect to the severity of the alleged interference, the Applicant testified that the noise, odour and flies allegedly emanating from the operation of the Respondent on the abutting land interfered with his use of his Iands for the purpose of hunting turkeys and other wildlife. He also submitted that it interfered with his use of the property for a shooting range, although Mr. Sajnovic testified that he never heard gunshots coming from the property and would have been aware if shooting had been taking place as it would have startled the turkeys who are very sensitive to those kinds of interferences. The Applicant did not call any evidence to corroborate his claims. Such corroborative evidence would have been helpful to the Board to eliminate concerns that Mr. Wright's evidence was overstated.

On the other hand, Mr. Chambers, who attended the site on two occasions, could find 'nothing inappropriate with the manner in which the Respondent was running his turkey broiler operation. His evidence was that on his site visit of October 9, 2009 the presence of odour from the barn was noticeable, but only in the immediate vicinity of the barns, that there was some noise from the fans but the vegetation tended to muffle the noise and that there was no evidence of flies. The Board also takes into consideration that the Applicant uses these lands for very limited purposes.

Considering all of these factors, the Board finds that, although the Applicant may have suffered an interference with the use and enjoyment of his land, it is not an interference which is substantial, serious or unreasonable enough to constitute an actionable nuisance and therefore to meet the threshold test.

During argument, Counsel for the Respondent submitted that Mr. Wright purchased the property in 2005 when there was already one barn on the abutting property and one in the process of being built. Counsel for the Applicant responded that you can come to a nuisance and it will still be a nuisance. At the end of argument, the Board allowed both Counsel to submit further material by way of argument on the issue of "coming to a nuisance".

Both Counsel then submitted further argument and material and it would appear very clear that "coming to the nuisance" is an ineffectual defence to a nuisance claim.

Mr. Good, on behalf of the Applicant, submitted a further case, that being the

Supreme Court of Canada case NCC et al v. Pugliese et al 1979 CanLII 32 (SCC), [1979] 2 SCR 104. He submitted that "the NCC case stands for the breach of the by-law being the basis for establishing nuisance. To hold otherwise would be condemnation by the Board of illegal, careless and/or improper intensive livestock siting."

In NCC v. Pugliese, the National Capital Commission and its contractors, in the process of some construction on NCC lands, pumped ground water in daily amounts exceeding a limit set out in section 37 of the Ontario Water Resources Act. The results were a dewatering of the ground water tables and the subsidence and settlement of land on abutting property with consequent damages to the homes on that abutting property. The Ontario Water Resources Act also contained a penalty for a breech of that provision. Pigeon J. found that any pumping in violation of section 37 was to be considered a nuisance when causing damage to other properties.

Mr. Good's argument, if we understand it properly, is that any time there is a disturbance emanating from a building which does not comply with the local zoning by-law and/or MDS II requirements (if applicable), a disturbance is automatically established. The Board disagrees. The proposition set out in NCC v. Pugliese would apply only where the disturbance/nuisance results in damage to property.

NCC v. Pugliese can be distinguished from the present case where the question is whether or not there was a substantial and unreasonable interference with the use of the Applicant's property. In adopting this position, the Board is not condoning non-compliance with the local zoning by-law. There are punitive sections in the zoning by-law to deal with non-compliance.

DECISION

In view of the Board's finding that the Applicant has not met the threshold test as to being directly affected by a disturbance, it is not necessary for the Board to deal with the second issue as to whether or not the disturbance resulted from a normal farm practice. The Board therefore dismisses the Applicant’s application.

DATED: September 27, 2010

Glenn C. Walker

Roger Pelissero

Marty Byl