Dubois v Burkhard No 2, 2011 ONNFPPB 1

ONTARIO NORMAL FARM PRACTICES PROTECTION BOARD

Dubois v Burkhard No 2 2011 ONNFPPB 1

DATE OF DECISION: 2011-01-31

2010-01

STATUTE: Farming and Food Production Protection Act 1998

HEARING:

BETWEEN: Larry Dubois and Paula Dubois -- Applicants and Walter Burkhardt and 1434343 Ontario Inc. -- Respondents

I APPLICATION

1. Larry Dubois and Paula Dubois 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.O. 1998, Chapter 1 (hereafter referred to as the "Act") .

2. The Complaint against the Respondents, Walter Burkhardt and 1434343 Ontario Inc. related to Noise and Vibration Disturbances generated or emanating from activity associated with the use of the Respondents' property (hereafter referred to as the "Burkhardt Lands"). The lands in question are owned by 1434343 Ontario Inc. (hereafter referred to as the "Corporate Respondent").

3. The NFPPB agreed to accept the Application as it related to possible Noise and Vibration Disturbances associated with the activities carried on at 282 East West Line, Niagara-on-the-Lake, Ontario.

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 Matt Wilson.

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 July 23, 2010 with Glenn C. Walker, the Chair of the Board, presiding. Although potentially a process also known as a Settlement Conference, in light of the fact that the Board had completed an earlier Hearing involving the same Parties over which Mr. Walker had presided, it was determined with the consent of all Parties that the process would only involve non-settlement considerations. Certain Rulings and Directions were made as to procedures to be utilized at the Hearing.

8. The Hearing requested was scheduled to commence on Monday November 30, 2010.

III HEARING

9. When the Hearing convened, the following participated:

a) Normal Farm Practices Protection Board

1. Anthony Little, Q.C. – Vice Chair
2. John DeBruyn – Member
3. Dwayne Acres – Member
4. Finbar Desire – Secretary to the NFPPB

b) Applicants

1. Larry Dubois
2. Paula Dubois
3. Peter Dubois – Agent for the Applicants

c) Respondents

1. Walter Burkhardt

2. Brigitte Gratl, J.D. – Counsel to the Respondents, Walter Burkhardt and 1434343 Ontario Inc.

3. 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.

4. While The Normal Farm Practices 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 Matt Wilson, 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.

As noted above, the authority for the Hearing derives from the Farming and Food Production Act, 1998 (hereinafter referred to as the "Act").

IV PRELIMINARY MATTERS AT HEARING:

12. The Hearing commenced with Mr. Little completing his opening remarks, explaining the processes and securing data as to the Parties and their representatives etc. as well as outlining the expected course of the Hearing which had not commenced.

13. Mr. Little confirmed that there were to be limitations placed upon the Parties as to the extent of the evidence that the Parties could present with respect to the alleged disturbances and the reasons therefor. The Reasoning behind those limitations was that the Parties had been involved in an earlier Hearing for which a Decision had been issued. As Mr. Little con finned on behalf of the Hearing Committee, the facts underlying the Decision in the First Hearing were not relevant to the Complaint presently before this Hearing Committee. The facts which the Board was prepared to entertain as being relevant to the present hearing would only relate to events which occurred after the date that the First Decision was issued and received by the Respondents and, thus, became a Decision which would bind the Parties. The Board ruled that the operative date would be September 29, 2009.

14. Notwithstanding that limitation, the Board agreed that evidence on issues which had transpired before that date which bore on issues of credibility might be accepted as admissible evidence. Those matters would be dealt with if and when they arose on an ad hoc basis without there being the enforcement of a hard and fast Rule as to admissibility.

15. Mr. Little further confirmed that the purpose of any Hearing before the Board was to determine whether or not there was a disturbance which had resulted from the existence of an agricultural operation which had affected an adjoining land owner. The burden of proving the existence of a disturbance as defined in the Act was upon the Applicant; the standard of proof in relation thereto was on a balance of probabilities. Upon the Board accepting on relevant and cogent evidence the establishing of a disturbance on that standard, the burden of proof then switched to a Respondent to show on the same standard of proof that the disturbance was a consequence of what the Board would find a normal farm practice.

The term disturbance is defined in Section I (I) of the Act as:

"Disturbance" means odour, dust, flies, light, smoke, noise and vibration.

In this instance, as a consequence of the earlier proceedings and the decision issued in relation thereto, Mr. Little confirmed that the issue of the jurisdiction of the Board to hear this matter was moot. The Board was not concerned 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.

The term agricultural operation is also defined in Section I (I) 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.

In summary, the Board confirmed that it would continue to determine on a balance of probabilities these 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.

The phrase or term normal farm practice is defined in Section I (I) of the Act as:

"Normal farm practice" means a practice that:

a. is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances or

b. makes use of innovative technology in a manner consistent with proper advanced management practices.

IV EVIDENCE AT HEARING:

16. The first witness presented by the Applicants was Hugh Fraser. Mr. Fraser is an Agricultural Engineer in the employ of the Ontario Ministry of Agriculture and Rural Affairs and is based in the Vineland Office of that Ministry. His credentials to give opinion evidence as an expert qualified within his own discipline or sphere of activity were not challenged by the Respondent. His specific expertise was within his job function as a Crop and Horticulture Specialist familiar for purposes of this Hearing with static equipment such as netting and decoys as well as noise attenuation equipment used to control bird predation upon grape crops – hereafter the Problem.

17. Mr. Fraser explained two separate Fact Sheets which he had authored with respect to these matters which were marked as Exhibits 3 and 4.

18. Mr. Fraser took the Board through the evolution of these two Fact Sheets and explained their purpose and the manner in which they had been modified or improved from time to time as well as explaining how they were received by the grape-growing industry. Exhibit # 3, as he explained, provided policies for all manner of initiatives which might be used to deal with the problem including propane-powered noise machines known as Bird Bangers. Exhibit # 4 was a modification of that early Fact Sheet.

19. Mr. Fraser explained how distance perimeters were established as a buffer against the possibility of unreasonable noise disturbance to neighboring properties. He also described the methodology employed by him in determining the Best Practice Guidelines for the general management of the problem of bird predation within the grape-growing industry.

20. After outlining his professional background and training, filing his CV (Exhibit # 10) in respect thereto and explaining the application of the Best Management Practices that had been developed as being appropriate to the grape-growing industry, Mr. Fraser described his actual interplay with the subject property and the Parties to this Hearing. In that regard, Mr. Fraser dealt with separation recommendations as between machines, the frequency of firings by the machines, their placement in the crop fields, the recommended number of machines per acre of crop and other related considerations.

21. In so doing, Mr. Fraser presented Exhibits # 5 and 6 which showed: 1. a Survey of the usage of Bird Bangers by other grape growers in the area of the subject property; and 2. A chronology of the times of his involvement with the Parties since October of 2004 to December 1st of 2008. Counsel for the Respondent took issue with evidence being presented which related to a period earlier than the focus for this Hearing. The Board accepted the Exhibit but indicated that it would use the point only for credibility considerations should credibility become an issue. Mr. Fraser then went on to identify Exhibits # 7, 8 and 9 which showed the location of bird banging equipment of the Respondent's property for the years 2001, 2002 and 2009 (October 15 through December 2, 2009)

22. In summary, Mr. Fraser indicated that there must be strict compliance with the Best Management Practice provisions found in the OMAFRA Publications and that there should never be a malicious use of such equipment including Bird Bangers by any responsible grape grower.

23. The final area of evidence covered by Mr. Fraser was to comment upon a selection of video taped extracts from Exhibit # 11 which showed the operation of a series of bird bangers on the Respondents’s property which surrounds the Applicant's property. Those extracts showed non-functioning or improperly functioning equipment said to be representative of the situation generally although it was conceded that the evidence needed to be elaborated upon by later witnesses.

24. The second witness presented by the Applicant was Mr. Matthias Oppenlaender. This witness was a farmer from the area with his home farm being located In Niagara-on-the-Lake where he and his wife grow grapes for the wine industry. They also run a bed and breakfast operation from the same property. He also identified himself as presently being a Director and Vice Chair of the Grape Growers of Ontario. This witness commented upon a series of pictures of grapes, growing vines and related matters which collectively comprised Exhibit # 13. The thrust of his evidence was to suggest that the pictured items were not of marketable quality as he would see them although he could not identify their source or location. He also commented upon the use of bird bangers on his farm with specific comment on the times they would be operated, the numbers which would be operated and the purpose for which they might be used which was to be in direct response to bird pressure. As he' indicated, the location of the field and its relationship to the Niagara Escarpment makes the field susceptible to greater or lesser bird pressure.

25. This witness was aggressively cross-examined by Counsel for the Respondent as to whether he had direct knowledge of where the items shown in Exhibit # 13 had originated. He was also challenged on his perspective on bird pressure generally.

26. The third witness presented by the Applicant was Nick Hubbard, a Systems Analyst for the Grape Growers of Ontario who testified as to the systems of marketing which prevailed in the wine growing industry in Ontario. His direct evidence related to the crops from the Respondent's property.

27. The fourth witness for the Applicant was Juan Newmann a local grape grower and neighbor to the Parties who had been growing grapes in the area for over 40 years. He identified the neighboring properties and their ownerships with specific reference to Exhibit 14. His evidence was mainly aimed at assisting the Board to understand what he felt to be the extent of bird pressure and thus the need for the operation of bird bangers in this particular part of Ontario. He was able to comment on his own best practices. This witness testified extensively on his own practice.

28. The fifth witness presented by the Applicant was Rob Smith employed by Vincorp International who had previously worked for the Respondent. Through him, the Board received Exhibits # 15, 16, 17, 18 and 19 - a series of ariel photographs which showed the locations of the Respondents' bird banging equipment for the years 2002 through 2006. Mr. Smith left the employ of the Respondent on June 21,2006. He commented that the three bird bangers shown on Exhibit # 7 were placed at a time when there was low bird pressure during the crop year. He con finned that it was always the Respondent, Walter Burkardt, who chose the locations for the equipment and who determined if the same locations would be used in succeeding years stating that the locations were moved to be closer to the Applicants' property in 2002. He commented that Walter Burkhardt said that he would make the Applicants' house shake or echo with the noise from his equipment so that they would go crazy. He continued by adding that he, Walter Burkhardt, was intending to make the conditions for the Applicants unbearable. He said that Walter Burkhardt had made similar comments a few times through the course of the summer. He added that the machine would be so controlled so as to not rotate as designed but send their sound towards the Applicants' house. When challenged as to his activities, Mr. Smith attributed words to Walter Burkhardt to the effect that: "I can do what I want, no one controls me". Mr Smith said he did not stand up to Walter Burkhardt although he strongly disagreed with his actions in relation to the Applicants and their property.

29. In 2003, Mr. Smith said the bird pressure was light and consistent with that of the preceding year. He referred to Exhibit # 16. He agreed that the problem population was the starling population. When referring to Exhibit # 17, he said the bird pressure was similar to the preceding year's. He said that the bird banging equipment would start at 5 or 6 in the morning and run to 10 at night and that sometimes the machines would run through the night.

30. Mr. Smith said that when he sought to question these matters, Walter Burkhardt made a similar reply to that which he had stated earlier to the effect that no one would tell him what to do as he makes the decisions.

31. Mr. Smith commented upon both Exhibits # 18 and # 19 to a similar effect. He confirmed that there was no appreciable change in the extent of the bird pressure than that to which he had described as prevailing in earlier years.

32. Mr. Smith stated that he had lived in a residence either adjacent to or on one of the subject properties and that he was also complaining about the noise levels as were the Applicants. He said that the noise levels were like those of a war zone. He explained that tenants of the Applicants had also complained as to the noise levels and that those tenants had eventually left because of the noise problems. He described himself as leaving from that living arrangement in the fall of 2005 and eventually the employ of the Respondents in June of 2006.

33. Mr. Smith was cross-examined vigorously by Counsel for the Respondents. His motivation for his evidence was plumbed in depth. His purpose in testifying on behalf of the Applicants was questioned as being a response to his not being given certain advantages promised by the relationship between himself and Walter Burkhardt which had proceeded on the basis that he would be a full partner or part owner in the Burkhardt enterprises. It was disclosed that there was on-going litigation as between Mr. Smith and Walter Burkhardt which centered on a separate property and its ownership. He was further questioned as to the developments which had been undertaken relating to those and other matters which had, apparently, taken place while Walter Burkhardt was in Europe on vacation or otherwise which were alleged to be derogations from fiduciary responsibility by Smith to Burkhardt. He was also questioned about a truck apparently owned by a numbered company in which Walter Burkardt and he had some ownership interest which, it was alleged, he had used for personal use or gain. Finally, he was questioned about a claim he had placed before the WSlB against Walter Burkhardt.

34. In the final area of questioning, when asked about Mr. Smith's significant support for the Applicants' position which, it was premised, he had shown through many appearances on their behalf, he was directly accused by Respondent's Counsel of "not telling the truth".

35. To that suggestion, Mr. Smith emphatically denied the suggestion - concluding: "No, I am telling the truth".

36. The Board next heard the evidence of William T. Bcrkhout - called on behalf of the Applicants. This witness was called with respect to land values. His area of expertise (See Exhibit # 20 - a CY) was that of a Realtor and Real Estate Brokerage Owner. He opined that there would be a diminution of land values in the instant case as a consequence of the noise disturbance which existed - given the configuration of the Burkhardt properties and the location of the Applicants' property within those properties and essentially surrounded by them. He concluded that a prospective purchaser would take the existing situation with respect to noise disturbance into consideration when assessing value.

37. In cross-examination, Mr. Berkhout conceded that he had not been involved in any actual sales in the surrounding area nor was he suggesting that bird banging equipment would not be found within areas where grape growing was being carried on.

38. Larry Dubois next presented testimony to the Board. While his evidence was emotional at times and while he dwelt back into times before the issuance of the Decision in the First Proceedings between these Parties, its general thrust was to give a history of the situation prevailing since September 22, 2009. In that evidence, he described with great specificity the emotional, financial and physical effects of the actions of the Respondents as they related to his family's enjoyment of their property and, in so doing, presented a number of Exhibits showing the location of the noise attenuation equipment (Exhibits # 21, 22, 23 and 24) and selected extracts from videos (Exhibit # 28) of their operation during the relevant time frame. To further develop that point, this witness presented Exhibits # 26 and 27 which showed the number of machines in use at various times and their respective hours of operation.

39. Larry Dubois also advised the Board as to the details of the rental agreement he had developed with tenants who occupied a second dwelling on the property and the circumstances of their termination of that agreement and the consequential loss by the Applicants of that source of income. In that regard, Exhibit # 25, a letter from James Fry dated June 21, 2009 was filed with the Board.

40. The evidence of Larry Dubois was given at length. The cross examination of Mr. Dubois was as lengthy and spirited. The Board does not intend to recapitulate the evidence in its entirety as a transcript of that evidence will disclose the details given.

41. Suffice it to say: The evidence of Larry Dubois pointed to a continuing disturbance from noise affecting the Applicants' property to a level (as later paragraphs will confirm) to satisfy the onus placed upon an Applicant to establish the existence of a nuisance (noise - in this case) to require the Respondent to justify such activities as having caused the creation of that disturbance to be a consequence of a normal farm practice.

42. Mrs. Paula Dubois' evidence was given in amplification of Larry Dubois' testimony to a similar effect. The Board does not intend to recapitulate that evidence - concluding that it corroborated the thrust of Larry Dubois's evidence to the same conclusions as noted above.

That concluded the Applicant's case.

The Respondents presented their case.

43. Walter Burkardt testified at considerable length. He was aided in those endeavors by an interpreter who translated the answers and questions appropriately. The length of the evidence was, of necessity, extended by the need to have the evidence presented in this fashion. In many instances, Mr. Burkhardt needed to be admonished to wait for the translation to be completed and his answers seemed to show some ability to converse in the English language. It was necessary for him to be told many times to await the question's translation before providing his response.

44. Mr. Burkardt's purpose seemed to be to question the conclusions of the thrust of the evidence presented by the Applicants and to question the reliability of that evidence on a number of technical aspects. The detail of that evidence is available for review in a transcript of the evidence. Again, suffice it to say that the Respondents' position was that there was no derogation from the purpose and impact of the earlier Order of the NFPPB and that there was no noise disturbance in any event. Further, there was nothing in the evidence which would suggest that there was anything done by him which could be described as being other than a normal farm practice in his usage of the bird banging equipment by the Respondents.

45. He, in fact, suggested that any possible malfunctioning of his equipment was by way of sabotage with the implication being that it was the hands of the Applicants which were causing that result.

46. In cross-examination, certain Exhibits were filed including Exhibits # 30, 31 and 32. Each required comment. The responses of Walter Burkardt will be found in the transcript of the evidence.

V DECISION AND REASONS THEREFOR:

47. The Board finds that the Applicants have successfully established the existence of a nuisance as described in the Act on a balance of probabilities thus satisfying the onus placed upon them by the Act. In that regard, while useful in the broad sense, the earlier decision of the Board was site specific to its evidence which bore no actual relevance to the responsibility of this Board to determine that issue - save with respect to being possibly helpful in determining issues of credibility.

48. In finding the existence of a nuisance in the instant case, the Board has followed its earlier decisions. The threshhold test is comparable to the test that is discussed in Pyke v. Tri Gro Enterprises Ltd. [1999] O.J. # 3217. In that case, in discussing what was formerly part of the law relating to the Tort of Nuisance, Justice Ferguson of the Ontario Superior Court of Justice indicated that the issue to be determined was whether: "there has been an unreasonable interference with the use or enjoyment of the plaintiff’s lands."

49. The Board finds that the evidence presented to it meets that threshold test. The evidence includes the anecdotal evidence of Larry and Paula Dubois on the ill-effects suffered by each, the establishing of credible evidence as to loss of value and opportunity - the termination of the tenancy of Fry being but one aspect of that. The evidence of Mr. Berkhout also added emphasis to those conclusions

50. The Board confirms that each case must always be determined on its own facts.

51. The facts found by this Board include the Respondents' use of mal-functioning or improperly functioning bird-banging equipment on the Respondents' property during the relevant time frame. The Board also accepted credible evidence which pointed to the conclusion that there was a low level of bird pressure prevailing during the relevant time frame considered by this Hearing. In addition, based upon credible evidence presented to it, the Board concluded that the protection of the sub-standard crop shown on the photographic evidence presented to it that there would be no financial benefit to the utilizing of bird-banging equipment during the same time frame. The Board was given evidence as to the likely low value - and thus marketability - of that crop and, as well, Walter Burkhardt testified to its ultimate market fate which added substance to the suggestion that, to protect that particular crop, was not a financially viable process.

52. As well, the Board finds that the Best Management Practices recommended in Exhibit # 4 were not observed in the period of time between September 29, 2009 and December 2, 2009.

53. Specifically the Board accepts the evidence that the proper number of bird-bangers, the spacing thereof as between machines, the location of each in relation to the Applicants' property (and the history of their placements and numbers) and the directions in which the noise was being aimed all were not in compliance with the said Best Practice Directions.

54. The Board finds that the nuisance so found is not a consequence of a normal farm practice as defined in the Act. The Board concludes that the Respondents have failed to satisfy the onus of proof placed upon them by the Act.

55. The Board found the evidence presented by the Applicants to be credible and accurate on all material matters. Where there was a dispute on a particular point between the version of the evidence presented by the Applicants and that to the Respondents, this Board accepts the former and rejects the latter.

56. The Board has considered in determining credibility as between the Parties and their evidence where there are differences in relation thereto, the manner in which each testified.

57. In concluding upon that issue, the Board has had reference to the recent decision of F.C.J. Newbold J. cited as Springer v Aird & Berlis LLP - [2009] O.J. 1408 and specifically to Paragraphs 13 through 16 thereof. It is those tests which have based the findings of credibility herein. The Board also referenced the case of Faryna v Chorley, [1952] D.L.R. 354 in assisting it in determining the issues of believability and credibility.

58. The Board finds that Walter Burkhardt was non-focused, evasive, non-responsive to the questions posed to him by his own Counsel and the Applicants' agent, self-contradictory and contradictory to found facts established on a balance of probabilities with reliability by uncontroverted evidence filed by way of Exhibits and viva voce comment.

59. Conversely, the evidence of the Applicants and the witnesses called on their behalf carried none of those aspects; rather, their evidence had a ring of authenticity, accuracy and truth establishing both internal consistency and reliability.

60. Any possible acceptance of the veracity of the evidence of Walter Burkhardt was severely compromised by the content of Exhibit # 31 - a letter dated November 8, 2006 which he had written to James Fry which in many ways corroborated the evidence of Larry Dubois on the points he had outlined in respect to the Applicants' Tenant, James Fry, and the termination of the latter's tenancy and the reasons therefor. Most importantly, it corroborated the evidence of Rob Smith as to the intentions of Walter Burkhardt with respect to the use of bird banging equipment on his property in respect to the Applicants generally.

61. The Board finds that the use of the said equipment by the Respondents was malicious, unnecessary, contrary to the Best Management Practice directives in Exhibit # 4, non-justified by either of the quality of the prospective crop or the presence of bird pressure as that term is used within the industry and prompted only by a mis-guided malicious attempt to cause discomfort to the Applicants.

62. The evidence of Mr. Oppenlaender, the representative of Grape Growers of Ontario and Hugh Fraser spoke to the need for responsible use of this type of equipment if the grape-growing industry is to maintain the respect of the communities within which it operates. This Board echoes the need for that approach.

63. The Board finds that the use by the Respondents of this equipment during the relevant time frame was solely prompted by non-commercial considerations inconsistent with normal farm practices within the grape-growing industry and solely implemented as part of a concerted effort to cause continuing discomfort to the Applicants and their enjoyment of their property.

64. The male fides or bad faith exhibited towards the Applicants by Walter Burkhardt as described by them is found by the Board to have existed on a balance of probabilities thus prompting the Board to take the unusual position of determining that this sort of noise disturbance must be permanently banned as it relates to the Parties to these proceedings and their respective properties.

VI. ORDER OF THE BOARD:

65. No acoustical control device of any sort or kind designed to attenuate, control or deter bird populations from affecting crops of any sort or kind or crop-growing activities of any sort or kind may be employed or utilized by the Respondents (or either of them) on any property within the block of land bounded by East/West Line on the south, the Town Line on the west, Lakeshore Road on the north and Vega Road (or its northerly projection) on the east. In addition, no such device may be employed or utilized in any operation in which either may have any ownership or participation interest of any sort or kind, including the relationship of a Landlord and Tenant or Licensor and Licensee in any other property within the same block of land. By way of further particularity (and without restricting the generality of thereof), the term acoustical device in this Order shall include propane- fired bird bangers or like-designed or powered devices as well as any hand-held (or otherwise) noise maker, gun or like device of any sort or kind.

Dated January , 2011 at Guelph, Ontario.

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

John Debruyn, Member Normal Farm Practices Protection Board

Dwayne Acres, Member Normal Farm Practices Protection Board