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
IN THE MATTER OF the Farming and Food Production Protection Act, 1998
AND IN THE MATTER OF: An application to the Board under Section 5 of the Farming and Food Production Protection Act, 1998 for a determination as to whether disturbances are as a result of a normal farm practice.
AND IN THE MATTER OF: A hearing to determine whether the respondents operate an agricultural operation as defined by the Farming and Food Production Protection Act, 1998.
Board File No.: 003Fryer19 Fryer v. Cooper
Between:
Thomas Frank Fryer
Applicant
And
Collin Cooper and Morgan Cooper
Respondents
Appearances:
Collin Cooper, Respondent
Morgan Cooper, Respondent
Thomas Frank Fryer, Applicant
Before: Glenn Walker, Vice-Chair; Kurtis Andrews, Vice-Chair; and John Lohuis, Member
REASONS FOR DECISION
A. Introduction
Mr. Fryer made an application to the Board under Section 5 of the Farming and Food Production Protection Act, 1998 (the “Act”) alleging disturbances consisting of noise, odour and flies arising from the operation of the Respondents, Collin and Morgan Cooper. A Pre-Hearing Conference was held on June 4, 2019. The Pre-Hearing Conference Chair determined that a preliminary hearing on the issue of the jurisdiction of the Board should be held and that the onus of proof should be on the Respondents to prove, on the balance of probabilities, that their operation is an “agricultural operation” within the meaning of the Act. The jurisdictional hearing was held on September 24, 2019 before a full panel of the Board. For the following reasons, the Board finds that the Respondents’ operation, as it relates to the activities complained of by the Applicant, is not an “agricultural operation” as defined in the Act.
B. Factual Background
The Respondents reside at 755 Chippawa Road, Port Colborne, Ontario. This property, which was purchased by them in 2011, consists of about 30 acres of land. Approximately 25 acres are used for growing crops and the balance is used for their home and yard, bush, a barn, paddocks and pasture.
Mr. Cooper works full-time off the farm with Canada Border Services Agency. Mrs. Cooper looks after the day to day farm operations, runs a program called “Living Out Loud” at the farm and is a stay at home mother for their young children.
Crops
Approximately 13 acres of the crop land is rented to a Mr. Bankart for his farming use. The balance of the crop land is used by the Respondents to grow hay and to pasture their horses. The majority of the hay is used to feed their own livestock. The Coopers have little by way of agricultural equipment and the harvesting of the hay is done by using custom work. They do not have an HST registration number nor are they presently members of an accredited farm organization such as Ontario Federation of Agriculture. Consequently, they do not have a Farm Business Registration Number and use Mr. Bankart’s Farm Business Registration Number to obtain the farm property class tax rate. No evidence was tendered by the Respondents to show farming income from growing crops.
Horses
The Respondents operate a stable under the name Quarry Lane Stables. They presently have 3 miniature horses and 4 large ponies on the property. They own the miniature horses and 2 of the large ponies. The other 2 large ponies are being boarded. Over the last 8 years they have had up to 16 horses of which 5 were boarders at any one time. On at least 3 occasions, Mrs. Cooper has bred some of her horses and sold the resulting progeny. No evidence was tendered by the Respondents to show farming income from raising livestock.
Living Out Loud
Mrs. Cooper operates a business called “Living Out Loud” on the farm. This program offers intellectually challenged individuals the opportunity to work with the horses as a type of therapy. She charges for these services, but to date has not made a profit nor does she expect to make a profit at the present time.
Statement of Farming Activities
The Respondents attempted to submit as evidence a copy of Mr. Cooper’s “Statement of Farming Activities” from his 2018 Income Tax Return, in which all the numbers had been redacted. The Board refused to accept the document with the redactions and the Respondents decided not to provide an unredacted copy as evidence.
C. Definition of “Agricultural Operation”
Subsection 5(1) of the Act provides that: “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”.
“Agricultural operation” is defined in subsection 1(1) as meaning “an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward”. (emphasis added)
The definition of “agricultural operation” is expanded in subsection 1(2) to include the growing, producing or raising of livestock and the production of agricultural crops.
D. ANALYSIS AND DISCUSSION
The rental of farm land to another operator does not qualify as the producing of agricultural crops by the owner of the land. The owner of the land is merely a landlord. This may be juxtaposed with share-cropping where the owner retains some risk in the farming endeavour. The Respondents confirmed that they are not engaged in a share-cropping endeavour.
With respect to the growing of hay by the Respondents, although this is an agricultural product, there is nothing in the evidence to lead the Board to believe that there is an expectation of gain or reward as most the product is destined to be used to feed the Respondents’ own livestock. Since there was no evidence tendered to demonstrate that the Respondents were raising their livestock with an expectation of gain or reward, the corresponding growing of hay for the purpose of feeding said livestock cannot qualify as an “agricultural operation” as defined in the Act.
It is noteworthy that the activities complained of by the Applicant did not directly relate to the growing of hay or any other crops in any event.
As to the “Living Out Loud” business, this pursuit falls outside of the definition of “agricultural operation” as it does not involve either the growing, producing or raising of livestock or the production of an agricultural crop, nor could it be considered ancillary to an “agricultural operation” in the present case. Similarly, the boarding of horses does not fall within the definition for the same reason. This is not to say that such activities could not possibly qualify as part of an “agricultural operation”, as defined by the Act, in a different context. In the present circumstances, however, such a finding is impossible since there is no evidence of an “agricultural operation” of any kind, as defined by the Act, being operated by the Respondents.
The breeding of horses and the selling of resulting progeny might ordinarily fall within the definition of an “agricultural operation”. However, there was no evidence by way of financial statements or a business plan to convince the Board that there is an expectation of gain or reward sufficient to bring this operation within the jurisdiction of the Act.
Without an expectation of gain or reward, the Respondents’ activities are best described as operating a “hobby farm”.
E. DECISION
The Board therefore finds that the Respondents have failed to meet the onus placed upon them to show that their operation is an “agricultural operation” within the meaning of the Act. Accordingly, this application will not proceed to a hearing and the Board’s file will be closed.