Normal Farm Practices Protection Board
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 a disturbance results from a normal farm practice.
Board File No.:
008Erland19
Between:
Michael Erland Applicant
and
Richard Leighton and Laura-Lee Leighton Respondents
Appearances:
Donald R. Good, Counsel for the Applicant
Richard Leighton and Kari Leighton as agent for the Respondents
Before: Glenn C. Walker, Chair; Lisa Hern, Member and Rod deWolde, Member
REASONS FOR DECISION
A. Introduction
An application was made to the Board by the Applicant pursuant to Section 5 of the Farming and Food Production Protection Act, 1998, S.O. 1998, Ch. 1, as amended, (the "Act"). The application alleges a disturbance due to noise arising from the adjacent farm operation of the Respondents and seeks a determination as to whether the alleged disturbance results from a normal farm practice.
The application came before the Board on March 10 and 11, 2020 and was heard at Ottawa, Ontario. An Order was made at that time, on consent, making Laura-Lee Leighton, the spouse of Richard Leighton, a respondent together with her husband.
The Board heard evidence from the Applicant and evidence from Jim Kehoe, Kent Massey and Laura-Lee Leighton on behalf of the Respondents.
For reasons that follow, this application is dismissed.
B. Factual Background
Site Location and Description
The Applicant has resided at 7001 Flewellyn Road, Stittsville, Ontario within the greater municipality of the City of Ottawa since 2002. The Respondents reside next door at 7039 Flewellyn Road. The Applicant's property presently consists of approximately 8 acres on which is located a dwelling house set back about 900 feet from the road. The property of the Respondents is located immediately to the southwest of the Applicant's lands and the boundary line is marked with a small cedar fence. The Respondents' land consists of approximately 50 acres of which 46 acres are used to grow hay with the balance containing a dwelling house and outbuildings and a small fenced area. The Applicant estimated the distance between the small fenced area and his home as being approximately 300 feet.
The Applicant described the area as being generally a mix of rural and residential uses with his property being zoned Rural Residential. He resides there together with his partner, Ivana Maskovic, and their two and one-half year old son. Since commencing this application, Mr. Erland has sold this property with a closing date of April 30, 2020.
The Use of the Respondents' Property
The Respondents have the following livestock on their property at the present time: 2 ponies, 2 goats, 15 geese, 20 ducks, 6 Guinea fowl and 80 to 100 chickens. They also have a 2 year old Great Pyrenees guardian dog which they use to guard the poultry from predators. It is an undisputed fact that there are several coyotes in the area. The Respondents acquired the dog after suffering substantial loss of poultry due to predation. No predation has taken place since the dog came into use at the property.
Having suffered certain medical issues, which prevented her from working at a full-time job as a Personal Support Worker, Laura-Lee Leighton began working with heritage breed chickens on her property. Some of the breeds that she works with are Beilefelder, Silver and Blue Laced Wyandottes, Lavender, Cuckoo and Black Orpingtons, Buff, Blue, Black and Splash Cochins, Silkies and Olive Eggers. Her business, Leighton Poultry, has a presence on Facebook. She sells fertilised eggs and chicks and ships across Canada and abroad. She also sells some of the ducks and geese. Her gross income from this business exceeds $7,000.00 although she has not registered to obtain her own Farm Business Registration Number.
The Respondents sharecrop the 46 acres in hay with Mrs. Leighton's father, Kent Massey, on a 50/50 basis after expenses. Most of the share of the crop that belongs to the Respondents is used in their own operation.
The Respondents did not submit any financial records for the farm or any formal business plan for the poultry business.
The Guardian Dog
Mrs. Leighton testified that after experiencing loss of poultry to predators, she researched the use of a livestock guardian dog on her farm. She chose the Great Pyrenees breed for its natural guarding instinct and its trustworthiness among young, small and helpless animals which are most prone to predation. In addition, the Great Pyrenees is nocturnal in nature, staying awake at night to guard the livestock and barking to drive away predators and/or alert its owners. She acquired her Great Pyrenees dog in February, 2018. The dog is usually located in the small fenced in area.
The Respondents did not call any evidence from other poultry farmers who use guardian dogs to reduce predation in similar circumstances, nor did they produce an expert to testify concerning the use of guardian dogs for the protection of livestock on a farm as a normal farm practice.
Jim Kehoe, a witness for the Respondents, testified that as a sheep farmer he has used guardian dogs for many years to protect his flock and Kent Massey, Mrs. Leighton's father, also testified that he has used dogs on his farm to protect his livestock. Mr. Kehoe was not qualified as an expert witness nor had he attended at the Repondents' farm.
The Disturbance
Starting in August of 2018, the applicant, Mr. Erland testified that he could hear the dog on the Leighton property barking every night and sometimes during the day as well. He described the bark at night as extremely loud. He submitted into evidence two sound bites of a dog barking and testified that it was the Leighton's dog. He also made more than 63 online complaints, as well as telephone calls, to the City of Ottawa about the barking dog but the municipality has refused to enforce its by-law because the dog is located on a farm and the municipality says that it has no jurisdiction.
He stated in his evidence that the barking of the dog wakes he and his family up during the night and that the barking "terrifies" his young son who is now afraid of a dog bark. Mr. Erland's domestic partner did not give evidence and no corroborating evidence, such as medical records or other witnesses, was put forward to support his claims concerning the impact of the barking on his life.
C. The "ACT"
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 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 the provincial health, safety and environmental concerns."
Subsections 5(1) and 5(4) of the Act provide 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."
"(4) 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."
A disturbance is defined in the Act as "odour, dust, flies, light, smoke, noise and vibration".
"Normal farm practice" is defined as meaning 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 uses of innovative technology in a manner consistent with proper advanced farm management practices."
"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. Discussion and Analysis
Issues to be Determined
The issues to be determined by the Board are:
Has the Applicant proven that he is directly affected by a disturbance of noise arising from a practice related to the operation of the Respondents?
If so, what is the farm practice?
Is the farm practice related to an agricultural operation as defined in the Act?
If so, is the practice a normal farm practice?
If the practice is not a normal farm practice, should the Board order the Respondents to cease the practice or to modify the practice in such a way as to be consistent with a normal farm practice?
1) Directly Affected by a Disturbance
In the case of Yarrow v. Buys, 2018 CanLII 69968 (ON NFPPB), the Board summarized its position on the issue of a disturbance directly affecting an applicant.
In Richardson v. Fox, 2005 ONNFPPB 34, the Board made a determination on the issue of being directly affected by a disturbance, as follows:
"In order to have standing to apply under Section 5 to the Board for a determination as to whether the disturbance results from a normal farm practice the Applicant must be found to be a person "directly affected by a disturbance". If the Applicant establishes standing by providing sufficient evidence to show that he or she is a person directly affected by a disturbance from an agricultural operation then the onus of proof shifts to the Respondent to prove on the balance of probabilities that the alleged disturbance results from a normal farm practice. In other words, the onus is on the Applicant to prove that he or she is directly affected by a disturbance from an agricultural operation in order for this Board to have jurisdiction.
This Board has previously held that there is a threshold test for a disturbance and that once the threshold is passed the degree in the quantity of the disturbance is not relevant (Lucas v. Terpstra et. al., NFPPB 2001 unreported). If the significance of the alleged disturbance is not of such a level as to "affect" the Applicant, the Board will be without jurisdiction.
What is the threshold test? Subsection 2(1) of the Act provides that a farmer is not liable in nuisance to any person for a disturbance resulting from an agricultural operation carried on as a normal farm practice. Subsection 2(2) of the Act states that no Court shall issue an Injunction or other Order that prohibits a farmer from carrying on the agricultural operation because it causes or creates a disturbance. The Legislature has transferred from the Superior Court to the Board the ability to deal with nuisance claims relating to disturbances as defined in the Act when the aggrieved person is seeking an injunction or other Order prohibiting a farmer from carrying on an agricultural operation. Consequently, it would seem that the threshold test for a disturbance is one 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 on 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 neighbour. 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."
It is not unreasonable to expect an Applicant to establish the same level of interference with the use and enjoyment of his property in an Application under Section 5 of the Act, as he would have to establish if he were making a claim for damages on the basis of the nuisance in the Superior Court. A consistent approach is absolutely necessary. After an analysis of the evidence in accordance with the statements of law set out in Justice Ferguson's decision, 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."
Based on the evidence presented to it by the Applicant, the Board finds that that evidence falls short of what is required to determine that the Applicant is directly affected by the alleged disturbance. The only evidence offered was the testimony of Mr. Erland to the effect that the barking of the dog woke him up at night. There was no evidence as to how that impacted on his life such as the need for sleeping pills or other medical or psychological treatment. In fact, the evidence of such impact was rather scant.
The impact on his young son was not fleshed out, fully explained or corroborated. The mother, the Applicant's domestic partner, did not give evidence nor was there any professional evidence as to the impact on the child.
In finding that the Applicant has failed to meet the threshold test, we have considered the following:
- the severity of the interference – the barking was loud and often at night.
- the duration of the interference – the barking was repeated.
- the character of the neighbourhood – this was a rural neighbourhood with some residences as opposed to an urban setting.
- zoning – the Applicant's lands are zoned Rural Residential in an otherwise agricultural area.
- change in the character of the neighbourhood – in the Board's opinion the barking from a guardian dog does not change the character of the neighbourhood.
- reactions of other persons in the neighbourhood – there was no evidence that others in the neighbourhood were complaining about the barking of the dog.
- The purpose of the Act and particularly the preamble.
The Board finds that the Respondents were using their property reasonably having regard to the fact that they had neighbours and took all reasonable precautions.
To use the words of Ferguson J. in Pyke, the Applicant must prove that the interference was substantial and would not be tolerated by the ordinary occupier in their location, an objective test. When the Applicant severed off a parcel of land leaving his present lands as the remnant parcel, it was a condition of the severance consent that the following covenant attach to the land:
"This property is located within an agricultural area and may, therefore, be subjected to noise, dust, odours and other activities associated with an agricultural area." It should be anticipated then that an ordinary occupier in this location should be prepared to tolerate an interference in the nature of this one.
Taking into account all of the circumstances, the Board has determined that there has not been an unreasonable interference with the use and enjoyment of the Plaintiffs' land.
The Board finds that the Applicant has not established that he has been directly affected by the alleged disturbance. In view of this finding, it is not necessary for the Board to make any determination with respect to issues (2) through (5) inclusive.
E. DECISION
For the above reasons the application is dismissed.
Dated at Chatham, Ontario this 25th day of March 2020.