Tim Smith et al. v. Robert Smith and Sandy Smith, 2016 CanLII 89323

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

Board File No.: 2015-03

BETWEEN:

Tim Smith and Debby Smith Co-Applicants

and

Allan Lovelace and Lynn Livingston Co-Applicants

and

Les Carrier and Mary Jane Prickaerts Co-Applicants

and

Peter Hollett and Glenda O’Reilly Co-Applicants

and

Robert Smith and Sandy Smith Respondents

APPEARANCES:

Trudie E. Robertson (Paralegal), Counsel for the Applicants Gene P. Chiarello, Counsel for the Respondents (on November 21 and 22, 2016)

BEFORE:

Glenn C. Walker, Vice-Chair Jane Sadler Richards Robert Brander

A. INTRODUCTION

Initially, the Board received five applications under Section 5 of the Farming and Food Production Act., R.S.O. 1998, c.1 (the “Act”). By Order of the Board dated August 24, 2015, all five applications were consolidated with the parties noted above found to be the appropriate Applicants and Respondents.

The purpose of the hearing is to determine whether the noise from the propane-fired canons – also known as bird bangers (hereinafter called “bird bangers”) is a disturbance that directly affects the Applicants, and if so, whether Robert Smith’s use of them is or is not a normal farm practice.

The application came before the Board for a hearing on March 29 and 30, 2016 and November 21 and 22, 2016 and was heard at Belleville, Ontario.

The Board heard evidence from all of the Applicants as well as Scott Preston, David Allen and Chris Malette. The Board also heard evidence on behalf of the Respondents from Larry Hall, Robert Smith, Sue Allen and Hugh Fraser, who was qualified to give opinion evidence with respect to damage to crops by birds and bird bangers in general.

For the reasons that follow, the Board grants the application on the terms stipulated.

B. FACTUAL BACKGROUND

(a) Site Location and Description

The subject farm is located at 914 Bronk Road, being Part Lot 27, Concession 6, in the geographic Township of Thurlow, in the County of Hastings, now part of the City of Belleville. The farm (hereinafter called the “Sandy Smith farm”) is owned by Sandy Smith and farmed, at least in part, by her son, Robert Smith, in order to grow a sweet corn crop. It should be noted that Sandy Smith did not attend the hearing, but was represented at the hearing by her son, Robert Smith. Mr. Smith has grown sweet corn for approximately 20 years and usually plants 20 to 25 acres. The corn is planted in a number of different plots, sown at different times to allow for a continuous supply of sweet corn during the summer.

The Applicants are all neighbours of Sandy Smith. Dr. Peter Hollett and Glenda O’Reilly reside at 834 Bronk Road, immediately south of the Sandy Smith farm. Allan Lovelace and Lynn Livingston live at 941 Bronk Road, across the road from the Sandy Smith farm. Les Carrier and Mary Jane Prickaerts reside at 1034 Bronk Road, adjacent to the northerly part of the Sandy Smith Farm. Tim and Debby Smith live at 888 Thrasher Road and they are also the owners of a farm across the road from their residence, which farm lies immediately east of the Sandy Smith farm. Of all of the Applicants, Allan Lovelace and Lynn Livingston appear to be the closest in proximity to that part of the Sandy Smith farm used to grow sweet corn.

(b) Alleged Disturbance by Noise

All of the Applicants have alleged that they have been directly affected by the noise of bird bangers used by Robert Smith on the Sandy Smith farm during the 2014 and 2015 crop years.

(i) Dr. Peter Hollett and Glenda O’Reilly

Dr. Hollett and his wife, Glenda O’Reilly, reside at 834 Bronk Road immediately south of the Sandy Smith farm with their three children. Dr. Hollett is a cardiologist and Ms. O’Reilly presently works as an office manager in his office. They live on a large parcel of land which Dr. Hollett described as “an executive level property”. Ms. O’Reilly is also an Equine Canada certified riding instructor. They keep several horses on the property and Ms. O’Reilly and the children are involved in show jumping.

Dr. Hollett described hearing the bird bangers as early as May 7 in 2015 and lasting throughout the crop year. He described the sound as being incredibly loud and like a rifle going off. He stated that Robert Smith had told him that one of the bird bangers was set to go off three times every four or five minutes and one was set to go off three times every six or seven minutes.

Both Dr. Hollett and his wife described how the noise from the bird bangers had affected their lives. He testified that it affected his sleep and made him more irritable in the summer because he was sleep deprived. It limited their outdoor entertainment and riding as their horses would be spooked by the blasts. It would also wake their children up extra early in the morning and make them irritable.

(ii) Tim and Debby Smith

Tim and Debby Smith both live at 888 Thrasher Road which is around the corner from the Sandy Smith farm but some distance away. Mr. Smith is also the owner of a large parcel of property adjacent to the east of the Sandy Smith farm. Tim Smith is a nephew of the Respondent, Sandy Smith, and a cousin of the Respondent, Robert Smith. Mr. Smith operates a truck parts business and Mrs. Smith is a pharmacist assistant.

They testified that Robert Smith started using the bird bangers in the fall of 2013 and throughout the growing season of 2014 and 2015. Mr. Smith also confirmed that the bird bangers were used on May 7, 2015 for a week or more. Tim Smith described the volume of the bird bangers as unbearable and that it has affected the use of his property as his family is no longer able to sit on their front porch, swim in their pool or entertain outside when they are being used. Mrs. Smith gave evidence as to how the bird bangers have stopped her and her friends from using their farm across the road for riding their horses due to the fear that the horses would be spooked by the blasts.

(iii) Allan Lovelace and Lynn Livingston

Allan Lovelace and his wife, Lynn Livingston, live directly across Bronk Road from one of the sweet corn fields used by Robert Smith on the Sandy Smith farm. They appear to be the closest neighbours to that part of the farm which is used for growing sweet corn. Mr. Lovelace is retired and his wife, Lynn Livingston, is employed as the Manager of Finance and Administration at the YMCA in Belleville. They purchased the property at 941 Bronk Road in 2009. They both testified that they were looking for country life, privacy and some peace and quiet. Mr. Lovelace described the volume of the bird bangers as like someone firing a shotgun off at about six feet away from you and the pattern of blasts as being three shots every three minutes and then when the second bird banger was activated, getting three shots in the space of about two minutes then three more shots so that it was just about continuous with a minute or two minutes between firings. Ms. Livingston described the volume as deafening and unbelievable, making her house shake and the windows rattle. Notwithstanding testifying that they could not see the bird bangers, they alleged that the bird bangers did not rotate and were aimed directly at their house. They kept a partial listing of the activity of the bird bangers in 2015 confirming that they did run from May 7 to May 10, 2015 for part of the day and again for a short period on June 13 and June 27. They admitted that this was only a partial listing of times as they were not always home to record the bangers. The witnesses David Allen and Chris Malette also testified with respect to the volume of the bird bangers when they visited the Lovelace/Livingston residence in August, 2015.

Mr. Lovelace testified that the noise from the bird bangers had caused him stress for which he is taking medication and loss of the use of his property as he and his wife are no longer able to go outside in the summertime but lock themselves in their basement to escape the sound. She also testified that she is stressed by the noise and has problems getting her job done at work. Both Mr. Lovelace and Ms. Livingston also indicated in their evidence that the use of the bird bangers was driving wildlife from the area and therefore denying them their ability to enjoy feeding the birds, etc.

(iv) Les Carrier and Mary Jane Prickaerts

Les Carrier and his wife, Mary Jane Prickaerts, live to the north of the Sandy Smith farm at 1034 Bronk Road. Mr. Carrier is retired and Mrs. Prickaerts is a sales associate. They have lived there for twelve years and were attracted to the location by the “peace and tranquility”. Mr. Carrier estimated the distance of his property from the Sandy Smith farm as being approximately 500 metres. He described the volume of the bird bangers as being extremely loud and not at all like a shot gun but much louder. Since the bird bangers began to be used, they both state that they are short tempered with each other more often. Mr. Carrier now uses sound protection for his ears when he goes outside to work when the bird bangers are being used, although he did use these previously when operating his riding lawnmower. Both witnesses confirmed the use of the bird bangers in 2015 as early as May 7, 2015.

(v)

Although some of the Applicants alleged that their properties had been devalued by the use of the bird bangers, no evidence from appraisers was adduced. As well no expert evidence was called by either side with respect to sound levels.

(c) Evidence of Robert Smith

Mr. Smith stated that he lives on the Fifth Concession about a couple of miles away, cross country, from the Sandy Smith farm where he grows 20 to 25 acres of sweet corn for the local market. The planting of the sweet corn is staggered so that there will be corn ripening continuously throughout the season.

In 2013, one plot of sweet corn that he was growing was 90% destroyed by blackbirds. He stated that the two types of birds which prey on the sweet corn crop are red-winged blackbirds and starlings. It is important as a producer that the sweet corn cobs be completely intact and not bird damaged as the public will not purchase sweet corn which appears to be have been damaged.

As a result of this damage to his crop, he consulted with other sweet corn growers and purchased a bird banger in August of 2013 and a second one in 2014. He explained that, as the season progresses, the two bird bangers are moved in a northerly direction as the various plantations of sweet corn mature.

He testified that his volume is set on “loud” and on frequency F2 which is a six to seven minute interval. His bird bangers have a photocell to time the start and end times for daily use.

He also stated that he aims for a start date of July 5 as there is no need for a bird banger when the corn has no cobs on the plant. The second bird banger would be turned on between the first and the fifteenth of August for approximately one month and then one bird banger would continue until the end of September. Mr. Smith did admit that he ran one bird banger in May of 2014 and in May of 2015 for the purpose of scaring wild turkeys out of the corn field after planting because they were eating the seed. He does not intend to use them before July 5 again.

He testified that at all times, he has maintained more than the minimum distance between the bird banger and the closest residence and that he has never tampered with the bird bangers to prevent them from rotating or pointed them directly at neighbours. On one occasion Peter Doris, an OMAFRA agricultural engineer, measured the distance between the bird banger located closest to the Lovelace/Livingston residence and it was located 150 metres from the east edge of Bronk Road and the Sandy Smith farm. This measurement was confirmed by Larry Hall, who was also present.

Mr. Smith is concerned only with protecting his sweet corn crop from starlings and red-winged blackbirds. He felt that bird pressure in his area was high and that using bird bangers was the most effective way of reducing bird predation.

(d) Hugh Fraser Report

Mr. Fraser was qualified as an expert witness to give opinion evidence with respect to damage to crops by birds and bird bangers in general. Mr. Fraser has 35 years experience as a former employee of the Ontario Ministry of Agriculture, Food and Rural Affairs, with specific expertise in dealing with agricultural noise abatement issues between horticultural growers and neighbours. He authored the Ministry Factsheet “Using Propane-Fired Canons to Keep Birds Away from Vineyards” which is Exhibit #12. There is no comparable factsheet for the use of bird bangers with sweet corn, but it was his opinion that the best management practices for bird bangers with sweet corn are generally the same as for grapes, with a few minor modifications.

The growing of sweet corn is profitable, but bird predation is a big problem with sweet corn and people are now very fussy about imperfections in the cobs.

Mr. Fraser attended at the Sandy Smith farm on two occasions during the growing season of 2016. As a result of a Consent Order made by the Board on April 1, 2016, prohibiting the use of bird bangers on the Sandy Smith farm and any other farm owned or operated by the Respondents, no bird bangers had been used during this crop season, although other acoustical and visual scarers had been employed. Mr. Fraser based his report with respect to the operation of the bird bangers in 2014 and 2015 solely on his examination of the bird bangers themselves and what Robert Smith told him with respect to his operational techniques.

In Mr. Fraser’s opinion, Robert Smith only operates his bird bangers to protect sweet corn from bird predation. Based on the amount of bird damage present in the field during his examination in 2016, he concluded that bird pressure is high which was consistent with the amount of bush in the area and few other food sources which are as tasty and easy to find to eat for birds as is sweet corn. Despite the fact that he acknowledged bird pressure would have been higher in 2016 because of the drought conditions, Mr. Fraser testified that he would be very surprised if the bird pressure for this farm would change drastically from year to year.

Of the 11 Best Management Practices (hereinafter referred to as “BMPs”) listed in the Factsheet on bird bangers, only one would not apply as it referenced echoing off the Niagara Escarpment. The other ten BMPs and how they would apply at the Sandy Smith farm are as follows:

Follow recommended setbacks for bird bangers to neighbours’ homes based on ring-graph method on management strategies shown as Figure 2 of the Factsheet. He recommended for Mr. Smith’s operation that only one minimum setback is appropriate: 125 metres (410 feet) from a neighbour’s dwelling, if the banger is set on the B – loud volume setting and the F2 frequency setting (4 to 8 minute interval). Mr. Fraser found that there were no neighbouring dwellings within the BMP minimum setback of 125 meters when the bird bangers are placed in the locations where he was told they had been located previously by Mr. Smith.
Tell neighbours living within 175 metres (575 feet) of bird bangers about when and how they will be operated and who to call if there is a problem. Mr. Fraser determined that based on the locations indicated by Mr. Smith, there were no dwellings within the 175 metre circumference but that it would still be a good idea to tell neighbours who to call if there was a problem with the bird bangers.
Start operating bird bangers no earlier than three to four weeks prior to veraison (a grape-growing term meaning “the onset of ripening”) and stop right after harvest. Do not operate outside this season. Although the Factsheet is written for grapes, Mr. Fraser testified that with respect to sweet corn, the birds will peck at cobs long before they are ready to harvest. It is therefore important to stop birds before they grow accustomed to foraging in sweet corn. Starting the use of bird bangers at less frequent settings before the first crop is ready makes sense for better bird control throughout the season. He confirmed that Robert Smith had offered not to start the first bird banger until after the long weekend in July because his first marketable corn is not usually taken off until about July 25.
Operate bird bangers during daylight hours, between 30 minutes before local sunrise and 30 minutes after local sunset. Do not operate bird bangers at night.
Place adjacent bird bangers no closer than 125 metres (410 feet) to each other.
Adjust timers to account for changes in sunrise and sunset times throughout the season. Since bird banger timers can only be adjusted to the nearest half hour, it is reasonable to adjust timers every two or three weeks.
Where practical, move bird bangers weekly so birds do not get used to their location.
Do not place bird bangers within a corn row directly in line with a neighbour’s house, as the row canopy can channel the sound towards the house.

Mr. Fraser found that only one dwelling could possibly be affected by sound channeling and this would be the Lovelace/Livingston residence. However, the topography is such that soundwaves would first have to travel uphill, then downhill to the dwelling across Bronk Road. Based on the information received from Robert Smith, he found that there was no evidence bird bangers had been placed far enough west to cause sound channeling.

Monitor bird bangers so they operate properly, especially those not on, or near your home farm. Since Mr. Smith does not reside at the property at 914 Bronk Road where the sweet corn and bird bangers are located, he must be even more diligent in monitoring these bird bangers.
Use light sensor over-ride devices to ensure bird bangers cannot operate at night, even if timers are adjusted improperly, especially on properties where the farm manager lives offsite. Like all new bird bangers that are sold in Ontario, both Mr. Smith’s bird bangers have light sensors that prevent operation at night.

C. The Act

(a) The objectives of the Farming and Food Production Protection Act, 1998 are set out in the preamble, which states as follows:

“It is desirable to conserve, protect and encourage the development and improvement of agricultural lands for the production of food, fibre and other agricultural or horticultural products.

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

It is in the provincial interest in agricultural areas, that agricultural uses and normal farm practices be promoted and protected in a way that balances the needs of the agricultural community with the provincial health, safety and environmental concerns.”

(b) “Disturbance” means odour, dust, flies, light, smoke, noise and vibration.

a) Is conducted in a manner consistent with proper 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 farm management practices.

(d) Subsection 5(a) provides as follows:

“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.”

(e) Subsection 5(4) provides as follows:

“After a hearing, the Board shall,

a) Dismiss the application if the Board is of the opinion that the disturbance results from a normal farm practice;

b) Order the farmer to cease the practice causing the disturbance if it is not a normal farm practice; or

c) Order the farmer to modify the practice in the manner set out in the Order so as to be consistent with normal farm practice.”

D. The Position of the Parties

(a) The Applicants’ Position

The Applicants take the position that the noise from the bird bangers has directly affected them in a number of ways from the loss of the enjoyment of their properties to their health. They allege that Robert Smith is using the bird bangers in a malicious manner in order to attack, harass or intimidate them. They further argue that Hugh Fraser’s report with respect to the location of and use of the bird bangers is only based on what Robert Smith told him, that bird pressure is only based on his 2016 observations and that Robert Smith is irresponsible and should not be trusted to use bird bangers in accordance with the Best Management Practices outlined by Mr. Fraser. The Applicants request that the Respondents be prohibited from using bird bangers on the Sandy Smith farm.

(b) The Respondents’ Position

The Respondents take the position that the Applicants have not proven that they are directly affected by the noise from the bird bangers. They deny that Robert Smith is using the bird bangers maliciously and state that he is using them within the Best Management Practice guidelines. They ask that the application be dismissed.

E. Discussion and Analysis

The issues to be determined are:

Are the Applicants, or any one of them, directly affected by a disturbance of noise emanating from the agricultural operation of Robert Smith and Sandy Smith?
If so, have the Respondents proven that the disturbance results from a normal farm practice?

1. Directly Affected by Disturbance

There is no issue as to the fact that the disturbance is one of noise, one of the seven disturbances listed in the Act, or that the noise comes from the agricultural operation of Robert Smith and/or Sandy Smith located at 914 Bronk Road. The issue here is whether or not that disturbance directly affects one or more of the Applicants. The Board accepts the evidence of all eight Applicants and finds that the noise from the bird bangers has directly affected the lives of all of the Applicants, although some more than others.

With respect to the witnesses, Dr. Peter Hollett and Glenda O’Reilly, we find that the noise has interfered with their sleep and the use of their property for outdoor entertainment and riding their horses. With respect to Tim and Debby Smith, the Board finds that their lives have been affected by interfering with their sleep and the riding of their horses on the farm abutting the Sandy Smith farm. With respect to the Applicants, Allan Lovelace and Lynn Livingston, the Board accepts their evidence that the noise from the bird bangers has interfered with their lifestyle with respect to the outdoor use of their property as well as creating stress and anxiety for both of them. Being the closest neighbours to the sweet corn fields and the bird bangers, Mr. Lovelace and Ms. Livingston appear to have been most affected. With respect to the Applicants, Les Carrier and Mary Jane Prickaerts, the noise from the bird bangers has also caused changes in their lifestyle with respect to the use of their property and additional stress.

There was much of the Applicants’ evidence which was directed to the alleged malicious use of the bird bangers by Robert Smith against his neighbours. This is denied by Robert Smith. For the reasons to follow, the Board finds it unnecessary to make a finding with respect to whether or not Mr. Smith was maliciously using the bird bangers to attack, harass or intimidate his neighbours.

This Board has previously held in a number of cases that the threshold test for a disturbance is one and the same as the common law test for nuisance in civil actions, that is: that there has been an unreasonable interference with the use and enjoyment of the Applicants’ lands. After an analysis of the evidence, the Board finds that, on the balance of probabilities, the evidence supports a finding that the noise from the bird bangers on the Sandy Smith farm has unreasonably interfered with the use and enjoyment of the Applicants’ lands. Although in some instances, the evidence may have been hyperbolic, we find that the interference was substantial, serious or unreasonable enough to constitute an actionable nuisance and therefore meet the threshold test.

2. Normal Farm Practice

The Applicants having proven to the satisfaction of the Board that they were directly affected by the noise from the bird bangers, the onus then lies upon the Respondents to prove that they have been carrying out a normal farm practice. It should be noted that, with respect to the issue of a normal farm practice, the focus of the Board is site specific. What may be a normal farm practice in one location may not be a normal farm practice in another. In each case, the definition of normal farm practice must depend on the site specific facts of the case.

The Ministry Factsheet “Using Propane-Fired Cannons to Keep Birds Away from Vineyards”, authored by the expert witness, Hugh Fraser, has been used by this Board in the past to develop normal farm practice guidelines for the use of bird bangers with vineyards. (Dubois v. Burkhardt, 2009, ONNFPPB 54). In his report, Mr. Fraser states: “There is no comparable fact sheet for the use of bird bangers with sweet corn, but it is my opinion that BMPs for bird bangers with sweet corn are generally the same as for grapes, with a few minor modifications.” It was his opinion that only BMP number 10 would not apply at the operation of Robert Smith because it is about echoing off the Niagara Escarpment. He also testified that he believed that the BMP guidelines for vineyards translated well from a vineyard setting to a sweet corn setting and that the start time should be approximately three to four weeks prior to harvest instead of veraison. Robert Smith proposed that he would turn on the first bird banger on or about July 5, the second one between the first and 15^th of August for one month and then leave the remaining bird banger running until the end of September.

The Board finds that the normal farm practice for the use of bird bangers in the area of the Sandy Smith farm would be as follows: (references to bird banger A and bird banger B relate to Figure 9 in the report of Hugh Fraser (Exhibit #22), a copy of which is attached hereto as Schedule A).

I. The Respondents may use up to two bird bangers for the present acreage used for the 12 plots set out on the said Figure 9. The bird bangers shall be set only on the B-Loud or A-Quiet volume settings and the F2 frequency setting (four to eight minute interval). The bird bangers shall be properly leveled so that they will rotate as designed and shall be located no closer than 125 metres from a neighbour’s dwelling.

II. If any bird banger is used within 175 metres of a neighbour’s dwelling, the neighbour shall be advised at least 72 hours prior to initial use in a crop year about when and how the bird bangers will be operated and who to call if there is a problem.

III. The bird bangers shall be operated no earlier than July 5 in each crop year and no later than September 25 in each crop year. Bird banger A may be operated between July 5 and September 25 inclusive. Bird banger B may be operated between August 2 and September 13 inclusive.

IV. Bird banger A and bird banger B as shown in the said Figure 9 may be moved as necessary by the operator but at no time shall they be closer than 125 metres to each other while both are operating.

V. Both bird bangers shall only be operated during daylight hours, between 30 minutes before local sunrise and 30 minutes after local sunset. The operator shall adjust timers to account for changes in sunrise and sunset times throughout the season, at least every three weeks, based on data obtained from www.sunrisesunset.com. All bird bangers must have light sensor override devices to ensure they cannot operate at night.

VI. Bird bangers shall not be placed in such a way as to channel noise, for example in a corn row.

VII. Bird bangers shall be monitored daily to ensure that they are operating properly.

VIII. The Respondents shall keep a daily log in writing including for each bird banger in operation: the loudness setting, the frequency setting, the start time and stop time setting, the dates on which time settings are adjusted and the dates on which bird bangers are moved. Logs shall be retained for at least 3 years from the end of the crop season.

IX. The use of bird bangers does not preclude the Respondents from also using other acoustical or visual scarers, either together with bird bangers during the regulated periods, or before or after those periods regulated for bird bangers.

Although there was some evidence that Robert Smith may have been using the bird bangers to control predation of the sweet corn crop by wild turkeys, raccoons, and deer, most of the evidence was directed to the need to use bird bangers to protect the sweet corn crop from bird predation and specifically red-winged blackbirds and starlings. Almost all of the Applicants testified that they had not noticed any prevalence of bird flocks in the area. However, in the videos provided by Robert Smith and the photograph at Figure 8 of the report of Hugh Fraser, flocks of birds can be seen flying away from the sweet corn fields.

Mr. Smith and Mr. Fraser both testified that they observed substantial damage to the sweet corn by birds in the 2016 growing season when bird bangers were not used. It was Mr. Fraser’s opinion that Mr. Smith only operates his bird bangers to protect sweet corn from bird predation and that, at least in 2016, his bird pressure was high which was consistent with the amount of bush in the area and few other sources of food which are as tasty and easy to find for the birds to eat as the sweet corn. However, he did indicate that bird pressure may have been higher in the 2016 crop year because of the drought conditions, but further testified that he would be very surprised if the bird pressure, although it will vary, would change drastically for this property from year to year. The Board therefore finds that it is necessary for Robert Smith and Sandy Smith to use bird bangers on the Sandy Smith farm in order to control bird predation of the sweet corn and that the use of acoustical and visual scarers alone are not sufficient.

The evidence is clear that, in 2014 and 2015, there were occasions when Robert Smith operated his bird bangers outside of the timelines established above as normal farm practice, specifically the use of the bird bangers in May of both 2014 and 2015 and also in June of 2015. Consequently, it cannot be said that, in 2014 and 2015, Robert Smith was conducting a normal farm practice.

The Applicants adduced a substantial amount of evidence concerning the character of Robert Smith based on the theory that he could not be trusted to obey any order made by the Board. This is a novel argument and goes to the remedy to be chosen by the Board, that is, should Robert Smith and Sandy Smith be ordered to cease using bird bangers or should they be allowed to continue to use them if they modify their practice so that it conforms to what the Board has found to be normal farm practice.

Since the purpose of the Act, as set out in the preamble, is to assist agricultural operators in the production of food while balancing the needs of those on adjacent lands, the Board feels that the Respondents should be allowed an opportunity to show that a normal farm practice can be maintained. The failure to do so may have serious consequences, including the loss of the right to use bird bangers.

F. Summary of Findings

The Board finds that all of the Applicants have been directly affected by a disturbance of noise emanating from the bird bangers used in the sweet corn agricultural operation of Robert Smith and/or Sandy Smith.
The Board finds that the normal farm practice for the use of bird bangers in the area of the Sandy Smith farm is as set out in paragraphs I through IX above.
The Board finds that the disturbance of noise which directly affected the Applicants did not result from a normal farm practice.

G. Decision and Order of the Board

The Board is of the opinion that the farm practice of using bird bangers to control bird predation of sweet corn on the Sandy Smith farm will be a normal farm practice if the Respondents modify the practice so as to be consistent with the normal farm practice set out below.

IV. Bird banger A and bird banger B as shown in the said Figure 9 may be moved as necessary by the operator but at no time shall they be closer than 125 metres to each other while both are operating.

VI. Bird bangers shall not be placed in such a way as to channel noise, for example in a corn row.

VII. Bird bangers shall be monitored daily to ensure that they are operating properly.

DATE: December 15, 2016