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 nuisances are as a result of normal farm practices.
AND IN THE MATTER OF a motion by Jacqueline and Claudio Rocca for an order that the application hearing be closed to the public.
BETWEEN:
Jacqueline Rocca Claudio Rocca Applicants
– and –
Roy Bayer Doris Bayer Respondents
Represented by Jacqueline Rocca
Devan J. Munch, for the Respondents
HEARD: June 25, 2020
Before: Glenn Walker, Chair; Doug Eadie, Member; Lisa Hern, Member.
Appearances:
Jacqueline Rocca
Devan J. Munch
DECISION OF THE BOARD
1The application of the Applicants alleges disturbances of odour and flies as a result of the storage, transportation and application of manure and the management of bales on the farm of the Respondents and is brought pursuant to section 5 of the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1.
2The Applicants bring this motion seeking an Order closing the application hearing to the public and rely upon section 9(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA).
3Section 9(1) of the SPPA provides as follows:
An oral hearing shall be open to the public except where the tribunal is of the opinion that,
(a) matters involving public security may be disclosed; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public,
in which case the tribunal may hold the hearing in the absence of the public.
4In their motion material the Applicants allege various incidents of what they claim to be incitement of hatred, harassment, intimidation, mischief, theft and retaliation by various community members that are known to the Respondents.
5They allege that in June 2016 they were improperly denied the use of an unopened road allowance by the Manager of Public Works for the Town of Northeastern Manitoulin and the Islands (NEMI), Gary May, who was the supervisor of the male Respondent when he was employed by the municipality.
6They allege that they were forced to clean up agricultural plastic wrap left by the Respondent, Roy Bayer, on their farm property after being threatened with a by-law infraction. They later sued the Respondents in Small Claims Court for compensation for the clean up. These threats were alleged to have been supported by Bruce Wood, a local Councillor, a cousin of the male Respondent, and another NEMI co-employee, Gerry Strong.
7There have been two Small Claims Court actions wherein the Applicants were the Plaintiffs and the Respondents were the Defendants, both involving issues unconnected to the matters before this Board.
8They allege threatening and intimidating telephone calls from Larry Killens after one of the Small Claims Court actions was commenced.
9There are numerous other allegations concerning a sign placed on the Respondents’ property, the theft of tools and mischief involving the Applicants’ property.
10There have been many other disputes between the Applicants and the Respondents. The Applicants allege that the community on Manitoulin Island is very closed and that they are viewed as outsiders and are unwelcome.
11It is not necessary for the purpose of this motion, for the Board to decide whether these alleged incidents undertaken by the Respondents or their alleged surrogates are true or false. Even if taken at face value, the fact is that they do not relate to any matter properly before the Board.
12The Applicant, Jacqueline Rocca, also submits that there were disruptions by members of the public and family members of the Respondents during the two Small Claim Court trials and the Pre-Hearing Conference in this matter that hindered her ability to represent herself and her husband. The Respondents deny those disruptions occurred and neither of the reasons for decision in the Small Claims Court matters make reference to them.
13It is a fundamental principle of the law that trials and hearings be open to the public. With respect to adjudicative tribunals that principle has been codified in section 9(1) of the SPPA. That section specifies two exceptions in subparagraphs (a) and (b). The onus is on the party who requests a hearing in camera to bring itself within one of those two exceptions. Considering the nature of the remedy sought, the onus is a high one. It takes exceptional and compelling circumstances for an administrative tribunal to order the closing of a hearing. (Re Ottawa Police Force and Lalande, 1986 CanLII 2511 (ON SC)).
14There is no evidence before us that would allow us to draw the conclusion that matters of public security would be disclosed at the application hearing. Public security is not the same as personal security and is a much broader concept that involves the protection of citizens and their property in general. The relevant evidence at the application hearing should properly relate only to the alleged disturbances of odour and flies and the normal farm practice of the storage, transportation and application of manure and the management of bales. Neither of these is a matter of public security.
15Furthermore, there should be no need for evidence at the hearing of intimate financial or personal matters or other matters that would meet the requirements of the second exception in section 9(1).
16It is incumbent on the party seeking a closed hearing to tell the Board what evidence the party believes will either relate to public security or be of an intimate financial or personal matter. The Applicants have failed to do so.
17The alleged incidents related in the Applicants’ materials are not relevant to the matters that will be explored at the application hearing.
18Representatives of the press and accredited farm organizations frequently attend Board hearings. Neighbours, farmers and other interested persons also often attend. They are welcome. The ability for them to come to an open hearing brings credibility to our justice system.
19The Applicants fear that an open hearing will exacerbate the harassment and intimidation they claim to have experienced. It is possible that closing the hearing might have the same or worse effect, with the public feeling that something is being hidden from them behind closed doors.
20As to the concern of the Applicants that the hearing will be disrupted, section 9(2) of the SPPA gives the Board the power to eject anyone disrupting the hearing in the Board’s opinion and to call upon the local constabulary to enforce such an order if necessary.
21The Board has conducted many hearings where the issues have been highly contentious and the community interest high without incident. The Applicants’ fears, at this point, are purely speculative.
22For these reasons, the Applicants’ motion is dismissed.
Released: June 29, 2020