Virginia Moir v. Omar Kihel and Barbara Dufour, 2020 ONNFPPB 4

Normal Farm Practices Protection Board 1 Stone Road West, 2nd Floor Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: NFPPB@ontario.ca

Commission de protection des pratiques agricoles normales 1 Stone Road West, 2e étage Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca

Virginia Moir v Omar Kihel- Barbara Dufour 2020 ONNFPPB 4

DATE OF DECISION: 2020- 11- 12

007Moir/Kihel20

STATUTE: Farming and Food Production Protection Act, 1998

HEARING: 2020- 10- 09

BETWEEN: Virginia Moir -- Applicant and Omar Kihel- Barbara Dufour -- Respondents FILE NO.: 007Moir/Kihel20 DATE: 2020/11/03

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 normal farm practices. AND IN THE MATTER OF a hearing held in writing to determine whether the respondents’ operation meets the criteria of “agricultural operation” as defined by the Farming and Food Production Protection Act, 1998.

BETWEEN:

Virginia Moir Applicant – and – Omar Kihel Barbara Dufour Respondents

Self-represented

Represented by Omar Kihel and Zahra Kihel

HEARD: October 9, 2020

Before: Kurtis Andrews, Vice-Chair; Rod de Wolde, Member; William George, Member.

Written submissions received from: Omar Kihel Barbara Dufour Zahra Kihel Virginia Moir

DECISION OF THE BOARD

1. Background

1The Applicant, Ms. Virginia Moir, made an application to the Board under Section 5 of the Farming and Food Production Protection Act, 1998 (the “Act”) alleging disturbances consisting of odour and noise, arising from the operation of the Respondents, Omar Kihel and Barbara Dufour.

2A Pre-Hearing Conference (“PHC”) was held on June 23, 2020. The PHC Chair determined that a preliminary hearing on the issue of the jurisdiction of the Board should be held separately, in writing, 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.

3The jurisdictional hearing was held in writing before a full panel of the Board, with final submissions from the parties being due on October 9, 2020.

4The Board notes that the parties have all been self-represented throughout these proceedings so far.

5The Board further notes that each stage of these proceedings has been conducted during the COVID-19 pandemic, and the Board has taken steps to minimize delays and maintain fairness as it deals with changing procedural protocols to conform with restrictions and safety measures related to the pandemic.

6For the following reasons, the Board declines to make a ruling on jurisdiction at this time, and the jurisdictional question shall instead be dealt with and determined at the same time as all of the issues of this matter. To be clear, the parties shall serve and file all of their evidence for the entire matter, in accordance with timelines set out by the Board, including as it might relate to whether or not the Respondents qualify as an “agricultural operation” as defined by the Act, and regardless of whether or not something may have already been served or filed by a party already. This will ensure that there is no confusion on behalf of the parties or the Board with respect to what evidence each party intends to rely upon at the future hearing.

2. Analysis and Discussion

7The PHC Chair issued a PHC Order dated July 22, 2020. The order included the following:

The Board orders that:

2. A written hearing to determine jurisdiction of the Board in this matter, related to the question, “Is the Respondents’ operation an “agricultural operation” under the Act?” shall occur as specified in this Order and/or as specified in the Notice of Hearing.

3. The Board may vary or add to this Order at any time either on request or as it sees fit. It may amend this Order by an oral ruling or by another written Order. The hearing panel of the Board, once convened, may vary this Order as appropriate.

8It is noteworthy that the Board would normally conduct a jurisdictional hearing in-person. However, due to restrictions and safety considerations respecting the COVID-19 pandemic, in-person hearings have been limited to special circumstances. In addition, at the time when the PHC Order was issued, the Board had not yet determined the protocols necessary to conduct virtual hearings. No doubt, the PHC Chair ordered the jurisdictional hearing to be conducted in writing because there was no other practical option at the time.

9The circumstances are different now, however, and it is clear that, in the interests of fairness to both parties, and to preserve the integrity of the process, the question of jurisdiction should be determined by way of a virtual hearing, and the attempt at a written hearing should be abandoned. The Board has also determined that it will be more efficient, at this point in these proceedings, to deal with all of the issues, including jurisdiction, as part of a full hearing of all of the issues related to the matter.

10The Board notes that the parties are self-represented, and this fact likely contributed to complications respecting the form of evidence that was served and filed by both parties, raising admissibility issues that could possibly be addressed through a virtual hearing. In retrospect, the Board finds that the evidentiary obligations of a written hearing were too burdensome to impose on self-represented parties.

C. Procedural Issues

11While the Board has declined to determine the issue of jurisdiction at this time, it has nevertheless received some evidence from the parties respecting the issue of jurisdiction as part of their attempted written submissions. In the interests of efficiency, the Board will provide some commentary at this time respecting the parties’ respective evidence that was filed with the Board, so that these issues may be addressed prior to the full hearing.

12The Board notes that the Applicant submitted web “links” to information that she intended to rely upon. This is not an acceptable form of evidence. For evidentiary purposes, any party choosing to submit web-sourced information will need to copy the information and serve and file it like any other disclosure. The Board wishes to emphasise that the admissibility of such evidence will only be conclusively determined by the panel hearing the matter, at the time when the evidence is formally submitted at the hearing.

13The Board also notes that the Respondents filed heavily redacted business documents as part of their submissions. While some redacting of the information contained in the evidence may be acceptable as admissible evidence (to be determined by the panel at the time of the hearing), it is evident that the Respondents have probably gone too far with redacting information.

14For example, if the Respondents intend to rely upon the income tax document that they submitted, then, at minimum, they should un-redact the farm name (if there is one) on the “Statement of Farming Activities”, and seriously consider including more information about their non-farm income. The Board wishes to again emphasise that the admissibility of such evidence, un-redacted or not, will only be conclusively determined when it is formally submitted to the panel at the hearing.

15Furthermore, if the Respondents wish to rely upon the “Sales Agreement[s]” that they submitted, then, at minimum, they should include the names and basic contact information of the parties of the agreements (both buyers and sellers), the descriptions of the animals, the prices, and signatures. Without this basic information, it appears practically impossible to assess or challenge the evidence. This raises serious fairness issues.

16If the aforementioned information contained in the evidence remains redacted, the prejudice caused by omitting the information will likely outweigh the evidence’s probative value, which will almost certainly necessitate its exclusion altogether. Having stated this, the Board still emphasises that the admissibility of such evidence, un-redacted or not, will only be conclusively determined when it is formally submitted to the panel at the hearing.

17As a final comment, the Respondents should probably consider including evidence pertaining to their expenses associated with their operation, as well as all of their evidence related to income, or it may be extremely difficult for the Board to determine if they qualify as an “agricultural operation” as defined by the Act.

D. Decision and Orders

18The Board orders that:

1. The issue of jurisdiction of the Board will be determined as part of a full hearing of the entire matter. The parties are therefore required to serve and file all of their evidence in accordance with the Board’s directions going forward. To be clear, this includes again serving and filing any evidence that may have already been served or filed in relation to the jurisdictional hearing. At the time of the hearing, the parties will also be expected to make submissions on all of the issues, including repeating submissions on the question of jurisdiction, if applicable.

2. Each party shall serve their initial disclosure on all other parties, including all relevant documents and things, witness lists and statements, experts’ CVs and reports, law or policy statements, photographs, audio recordings, video recordings, maps, plans and any other documents to be relied upon as evidence, on or before 60 days prior to the first day of the hearing of this matter.

3. Any reply disclosure of the parties shall be served on or before 15 days prior to the first day of the hearing of this matter.

4. The form of service of the above materials shall be in accordance with an order to be sent out with the Notice of Electronic Hearing of this matter.

5. The parties shall each file the above materials with the Board at least 15 days prior to the first day of the hearing of this matter, in accordance with an order to be sent out with the Notice of Electronic Hearing of this matter.

6. No party shall tender as evidence any item or call any witness not included in their submitted materials and circulated prior to the hearing without leave (permission) of the Board.

7. The date, time and form of the hearing shall be in accordance with the Notice of Electronic Hearing of this matter.

8. The matter of a site visit by the Board will be determined by the hearing panel.

9. The Board may vary or add to this Order at any time either on request or as it sees fit. It may amend this Order by an oral ruling or by another written Order. The hearing panel of the Board, once convened, may vary this Order as appropriate.