Normal Farm Practices Protection Board
Commission de protection des pratiques agricoles normales
1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433 Fax: (519) 826-4232 Email: NFPPB@ontario.ca
1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433 Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca
Normal Farm Practices Protection Board
IN THE MATTER OF: An application to the Board, under Section 5 of the Farming and Food Production Protection Act, 1998
Board File No.:
003Baker18: Conte et al. v Baker
Between:
Marisa Conte, James Fisher, Ulku Oren, and Yuksel Oren Applicants
And
Kristian Baker and Jason Baker carrying on Business as Baker Estate Vineyards Respondents
AND
Board File No.: 001Pingue18: Conte et al. v Pingue
Between: Marisa Conte, James Fisher, Sandra Frost, Torben Frost, Mike Kostecki, Pat Kostecki, Kaljo Laar, Winnifred J. Laar, Ulku Oren and Yuksel Oren Applicants
And
Mario Pingue Respondent
DECISION AND ORDERS
APPEARANCES
Kenneth Douglas, Counsel for Kristian Baker, Jason Baker and Mario Pingue (Moving Parties)
Kevin Mitchell, Agent for Marisa Conte, James Fisher, Ulku Oren and Yuksel Oren (Responding Parties)
Winnifred Laar, Agent for Marisa Conte, James Fisher, Sandra Frost, Torben Frost, Mike Kostecki, Pat Kostecki, Kaljo Laar, Winnifred Laar, Ulku Oren and Yuksel Oren (Responding Parties)
BACKGROUND
On or about January 10, 2018, the Board received ten applications under Section 5 of the Farming and Food Production Protection Act, 1998 concerning complaints of noise arising from the agricultural operations of Mario Pingue (hereinafter called “Pingue”) and Kristian and Jason Baker operating as Baker Estate Vineyards (hereinafter called “Baker”). The Board decided to proceed by way of joining the four applicants in which Baker was named as the agricultural operator in one matter (hereinafter called the “Baker matter”) concerning the farm at 1850 York Road, Niagara-on-the-Lake and the ten applicants in which Pingue was named as the agricultural operator in another matter (hereinafter called the “Pingue matter”) concerning the farm at 4 Sheppard Circle, Niagara-on-the-Lake. The farms are approximately 500 meters apart. Pre-Hearing Conferences were held in both matters on May 23, 2018 and June 6, 2018 respectively.
MOTION
This motion was brought by both Respondents requesting the joining together of the Baker matter and the Pingue matter (and the removal of Mario Pingue if deemed appropriate) and the consolidation of the two matters pursuant to Rule 34 of the Board’s Rules of Practice and Procedure.
The affidavit of Mario Pingue, sworn the 30th day of June, 2018, discloses that Pingue has entered into a lease, dated as of July 27, 2018 with Baker for the rental of the Sheppard Circle farm to Baker commencing on August 1, 2018 for a term of 64 months and including a five year renewal “right of refusal”. The lease contains in paragraph 6.5 an indemnification clause saving Pingue harmless from any claims arising from Baker’s use of the vineyard.
The Respondents argue that any actions taken by Pingue, whatever they were, are no longer relevant and should not be admitted at a hearing. Ms. Laar, agent for the Applicants in the Pingue matter, was adamant that they would call evidence of the alleged disturbances during the time that the Sheppard Circle farm was operated by Pingue. The Applicants in both the Baker matter and Pingue matter were both content that the matters be joined provided that both sets of Applicants could have separate representation, that separate evidence could be called and separate decisions given with respect to both farms.
ANALYSIS
A decision as to whether two applications should be joined or consolidated is left to the discretion of the Board and falls under the well accepted doctrine that an administrative tribunal is entitled to govern its own processes. Rule 34 provides that the Board may combine the applications where they are made against the same person and bring into question the same or similar issues. These applications as they are presently constituted are not made against the same persons although they do bring into question a similar issue, which is noise from propane cannons. The rule also states that they may be combined if they have questions of law or fact in common. These applications do not meet this criterion as the facts in the two applications will be different and the questions of law as applied to those facts will be different.
The purpose of a consolidation of hearings is to reduce repetition of evidence and argument thereby reducing the time spent for the hearing resulting in time and money saved for the parties. On the other hand, the consolidation must not affect the ability of the Board to give all parties a fair and just hearing. An unduly complicated hearing, would in my opinion, not be in the interests of all parties, especially those without legal representation.
The Applicants in the Pingue matter have refused to permit Pingue to be removed as a Respondent and to substitute Baker. They have also indicated that they would not be prepared to pursue their claim against Baker for the 2018 crop season at the November 2018 hearing. As Pingue is no longer the agricultural operator of the Sheppard Circle farm, any order obtained from this Board after a hearing would be of very little utility to the Applicants. This was made very clear to the Applicants in the Pingue matter at the motion hearing.
As the Baker and Pingue matters presently stand, I find no reason to grant the motion pursuant to Rule 34. The Respondents are not the same nor are the questions of fact and questions of law as applied to those facts similar.
SUBSECTION 8(1) OF THE FARMING AND FOOD PRODUCTION PROTECTION ACT, 1998
Subsection 8(1) of the Act provides as follows:
“The Board may refuse to hear an application under section 5, 6 or 7 or, after a hearing has commenced, refuse to continue the hearing or to make a decision, if in its opinion,
(a) The subject-matter of the application is trivial;
(b) The application is frivolous or vexatious;
(c) The application was not made in good faith; or
(d) The applicant has not a sufficient personal interest in the subject-matter of the application.”
The Pingue matter is scheduled for a hearing on November 6 to 9 and November 13 to 16, 2018. As of August 1, 2018, Pingue does not appear to be in the care and control of the Sheppard Circle farm as it has been leased to Baker for at least the next five years. Final orders of this Board, made pursuant to Subsection 5(4) of the Act, are considered to be in personam and not in rem. In other words, they are made against the farmer named in the application and do not bind the land. Consequently, if the Applicants in the Pingue matter are successful after a hearing, any order made would affect Pingue only and not Baker for at least the next five years and perhaps ten years if the five year option to renew is exercised.
The Board may exercise jurisdiction under subsection 8(1) on its own motion provided it requests and considers submissions from the parties.
ORDERS
The Board therefore orders:
The motion to join the two applications is dismissed;
The Applicants in the Pingue matter shall serve and file written submissions addressing the issue of whether or not the Board should refuse to hear the Pingue matter on the basis that the subject-matter of the application is now trivial or that the application is now frivolous or vexatious on or before August 30, 2018;
The Respondent in the Pingue matter shall serve and file written submissions in response on or before September 10, 2018;
The Applicants shall serve and file written submissions in reply (if any) on or before September 14, 2018;
All submissions shall be provided to the Board in quadruplicate;
The Section 8 issue shall be considered by a full panel of the Board; and
The dates for serving and filing disclosure documents set out in the Pre-Hearing Conference Order in the Pingue matter dated July 3, 2018 are stayed until further order of the Board.
DATED this 20th day of August, 2018.