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
FILE NO.: 004Rocca19
DATE: 2020/11/02
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 for disclosure and interrogatories by the applicants, Jacqueline Rocca and Claudio Rocca and submissions regarding Peter Doris, a proposed witness.
BETWEEN:
Jacqueline Rocca Claudio Rocca Applicants
– and –
Roy Bayer Doris Bayer Respondents
Represented by Jacqueline Rocca
Represented by Devan J. Munch
HEARD: August 11, 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 (“Act”).
2The Applicants bring this motion seeking an Order for disclosure and interrogatories.
3Rule 33(1) of the Board’s Rules of Practice and Procedure provides that the Board may order any party to provide such further information, particulars or documents as the Board considers necessary for a full understanding of the issues.
4Rule 28 of the Board’s Rules of Practice and Procedure provides that the Board may order that interrogatories be exchanged among the parties.
5The right to demand answers to interrogatories pursuant to Rule 28 or particulars and documents pursuant to Rule 33 requires a Board order.
6In order to obtain such an order the requesting party must establish that the answers, particulars or documents relate to facts material to the questions between the parties; in other words, they must be relevant to the issues to be decided by the Board.
7At the Pre-Hearing Conference, held on August 19, 2019 before member Jane Sadler Richards, the issues for the hearing of the application were determined to be:
The management of manure while stored at 1520 Indian Mountain Road, causing odour and/or flies, as this relates to a. the duration of the storage, b. the lack of cover over the manure pile, and/or c. the lack of runoff containment or mitigation.
The management of manure while stored at 1418A Indian Mountain Road, causing odour and/or flies, as this relates to a. the duration of the storage, b. the lack of cover over the manure pile, and/or c. the lack of runoff containment or mitigation.
The management of manure during transport, causing odour and/or flies, as this relates to a. excessive manure spillage on Indian Mountain Road directly in front of Ms. Rocca’s property, b. excessive manure spillage on the right-of-way shared by Ms. Rocca and Mr. Bayer, and/or c. the route taken when transporting manure.
The management of manure application in two fields (one field, rented by Mr. Bayer, located across from Ms. Rocca’s property, on the other side of Indian Mountain Road and one field, owned by Mr. Bayer, located beside Ms. Rocca’s property, on the other side of a shared right-of-way, on Mr. Bayer’s home farm at 1418A Indian Mountain Road) that are close to or abut Ms. Rocca’s property and land use, causing odour and/or flies, as this relates to a. the exclusivity of manure applications on these properties when, in Ms. Rocca’s view, other lands are available for manure application that are not adjacent to Ms. Rocca’s property, b. the inappropriate timing of manure application relative to consecutive annual applications or weather events, and/or c. the over-application of manure on these properties.
The management of manure application in two fields (locations as previously described) that are close to or abut Ms. Rocca’s property and land use, causing odour and/or flies, as this relates to a. the lack of incorporation of manure after application.
The management of bales, causing flies, as this relates to bales left, without collection, in locations that are a. in close proximity i.e., less than 50 m, and b. in the vicinity i.e., within 500 m and up to 1 km, to Ms. Rocca’s property.
8Throughout this decision, these issues will be referred to as issues 1 through 6.
9The first request is: “to provide the names of the Respondents’ agreements with all other landowners, as well as the amount of acreage for all these agreements for haying, cropping, pasturing, application, trapping or any other farming activities. I request that the Respondents mark and number the location of those tenancies on the blank map attached (Appendix 1) and fill in the table attached (Appendix 2) named: ‘Disclosure request of other properties’”.
10The Applicants argue that this information is necessary and relates to Issue 4 with respect to where Mr. Bayer chooses to apply the manure.
11The Respondents state that they have already disclosed most of the requested information including rental arrangements and acreage for the Bayer property, the Morton property, the Belanger property, the Sternig property and the NEMI property but refuse to provide information relating to other properties on the basis that it is completely irrelevant.
12If there are other farms used by the Respondents in their agriculture operation, information concerning those farms would be relevant to the Applicants’ attempt to argue that other lands are available for manure application. The Applicants have not provided a sufficient legal basis to support their request for number of bales or the type of crops produced on those lands and that information is not relevant in our opinion.
13Consequently, the Respondents shall disclose any farms used by the Respondents in their agricultural operation, other than those named in paragraph 11 above, including their legal description or 911 number description, whether they are owned or leased, if leased the name of the owner and the acreage of each farm.
14The second request is for the type of crop grown on these properties and if they were tilled and seeded in 2017, 2018 or 2019. There was no legal basis established by the Applicants to cause the Board to find that this information is relevant to the issues at hand. The issues relate to specific farm practices, which do not relate to Mr. Bayer’s choice of crops or on which farm he chooses to plant these crops.
15The third request is for the number of hay bales harvested annually from each property. This information was also requested as part of the document attached as Appendix 2 to Ms. Rocca’s original affidavit.
16As stated above, there is no legal basis established by the Applicants for a breakdown of the number of bales of hay produced on each farm. However, the total number of bales produced by the Respondents from all the farms may be relevant to Issue 6. The Respondents will provide to the Applicants their best estimation of the total number of bales produced from all farms in each of the 2017, 2018 and 2019 crop years.
17The fourth request was “that the Respondent, Roy Bayer, disclose his employment history including dates and employment details, including for the Town of NEMI and if he was employed in the Agrifeed or Agriculture industry (other than on his own Farm on Manitoulin) and any other non-agricultural employment”.
18The Respondents responded to this request in this motion stating that “Mr. Bayer’s employment history is wholly irrelevant to the within application. Mr. Bayer’s income has nothing to do with this application except for the fact that he earns income from an agricultural operation”.
19We agree with the Respondents that this information is “wholly irrelevant” and do not accept Ms. Rocca’s arguments to the contrary. Mr. Bayer must still prove that he operates an agricultural operation as defined by the Act, but notwithstanding that fact, the requested information remains irrelevant to the issues set out above as established at the Pre-Hearing Conference.
20The fifth request is for “a breakdown of item #9711 of Mr. Bayer’s T2042’s, capital costs breakdown and/or the following information on farm equipment and implements.
a) I would like specific information on the Respondents’ Manure box spreader(s). The make, model, specifications (width, capacity, etc.) Also, if it is a closed unit, pictures, etc.
b) What equipment the Respondent uses to brush the ROW and/or lawn maintenance.
c) What equipment the Respondent uses to perform snow removal (Plows and blowers).
d) Equipment used to till, seed, plow of disc fields. (make, model, description)
e) Any incorporating equipment apart from (d).”
21The Respondents state that the information requested in sub-paragraph (a) has been disclosed. We are satisfied that it has been. The other information, aside from the nature of the equipment Mr. Bayer uses to incorporate the manure after application, is completely irrelevant to the issues as set out above.
22However, the Respondents will disclose to the Applicants the type of equipment which is used to incorporate the manure after application.
23The sixth and final request reads as follows: “I am asking for the size and description of all Respondents’ barns. I request with this information, for the Respondent to mark and show the attached and detached structures such as lean-to’s, storages, etc. with full measurements of and a list of other structures in these confinement/barn yards. Also, I require the slope and calculation for both yards.”
24Ms. Rocca states that Peter Doris, a proposed expert witness for the Respondents, will be providing Minimum Distance Separation (MDS) calculations for the Respondents’ barns and run-off calculations. She asks for this information to allow her to challenge the evidence of this proposed witness and requests permission to personally visit the Respondents’ properties to take measurements and confirm other alleged facts.
25The Respondents have provided some of this information to the Applicants but did not comment on the request of Ms. Rocca to attend on the properties with the barns, being the Bayer and Morton barns.
26MDS calculations and run-off calculations are relevant to Issues 1 and 2. In order to properly contest the Respondents’ assertions that they are carrying on a normal farm practice, the Applicants are entitled to call their own evidence on the issues of MDS calculations and run-off calculations. In the Board’s view, however, such evidence would only be useful, or in fact, admissible, if it came from a person who was qualified to give expert opinion evidence in the areas of MDS and run-off calculations. Ms. Rocca, we presume, does not have those qualifications.
27By further motion to the Board, the Applicants may request permission for an expert in MDS and/or run-off calculations to attend at the Bayer and Morton barns to take measurements and photographs. On such a motion the Board would expect to be provided with an appropriate CV from the expert. Mr. Bayer would be entitled to accompany the expert, but the Applicants would not be permitted to enter the properties.
28The seventh and final request asks for “full disclosure (all the communications and letters, notes from the site visit, emails, all calculations, pictures, notes from conference calls, etc.) between the Respondents’ witness, Peter Doris, and counsel, Devan Munch and with the Respondents. I also request communications from Peter Doris and Brian Bell related to my Conflict Resolution attempted in July/August 2018”.
29The Respondents’ response is that they have already provided the measurements and calculations of Peter Doris and, of course, any evidence that they intend to introduce through that witness must be disclosed to the Applicants prior to the hearing.
30With respect to the other documents requested, they claim that solicitor-client privilege and litigation privilege apply to prevent those documents from being disclosed to the Applicants.
31It is clear that all communications between the Respondents and their counsel, Mr. Munch, are privileged under the solicitor-client privilege.
32The common law doctrine of litigation privilege protects all documents and communications between a lawyer, his client or a third party created for the dominant purpose of preparing for existing or anticipated litigation. There is an overlap with the doctrine of solicitor-client privilege.
33The doctrine of litigation privilege can extend to mediation-type documents. (Liquor Control Board of Ontario v. Magnotta Winery Corp., 2010 ONCA 681)
34Therefore, we find that all the documents and communications sought in this request are privileged, including documents and communications relating to the Conflict Resolution process which were prepared in anticipation of litigation.
35In her submissions regarding this disclosure motion, Ms. Rocca raised the issue of Peter Doris being able or allowed to testify at the hearing for the Respondents. She stated: “Furthermore, as Peter Doris was the Mediator at our Conflict Resolution held in 2018, I see him as biased, prejudiced and not neutral at all. After all, the role of a Mediator is to act as a neutral third party and to facilitate a resolution however he was argumentative and opinionated throughout our attempt at Resolution”.
36As it is understood by the Board that the Respondents have engaged Mr. Doris to give expert opinion evidence at the hearing, the Board requested that both parties provide written submissions on this issue.
37Written submissions were subsequently served and filed by the Respondents supporting their position. Responding submissions were received from the Applicants.
38Rule 65(1) of the Board’s Rules of Practice and Procedure provides
Before accepting an application for a hearing, the Board shall be satisfied that the Farm Practices Conflict Resolution Process established by the Environmental Management Branch of the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) has been applied and has been unsuccessful in resolving the conflict between the parties.
39The Application of the Applicants indicated that the Conflict Resolution process had taken place with Peter Doris, an agricultural engineer employed by the Ministry of Agriculture, Food and Rural Affairs. The Board subsequently confirmed that fact and the fact that the Conflict Resolution had been unsuccessful.
40Two issues are raised by the Applicants: firstly, the alleged bias of the proposed expert witness, Peter Doris, and secondly, whether he is able to testify at the hearing given that he acted in the role of mediator in the Conflict Resolution process. A third issue, raised by the Respondents, is, if he is permitted to testify, the scope of his evidence.
41It is trite law that an expert witness has a duty to be independent and objective notwithstanding that he or she is engaged by one of the parties to the litigation.
42Regarding the confidentiality or privilege applied to communications between the parties and the mediator, Rule 24.1.1.14 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which applies to mandatory mediation in the courts, provides that all communications at a mediation session and the mediator’s notes and records shall be deemed to be without prejudice settlement discussions.
43The nature of mediation is described in rule 24.1.02 as a situation in which "a neutral third party facilitates communication among the parties to a dispute, to assist them in reaching a mutually acceptable solution".
44We find that Peter Doris, by conducting the Conflict Resolution process, was carrying out the duties of and has the obligations of a mediator.
45Section 4.9 of the Statutory Powers Procedure Act R.S.O 1990, c. S.22 (“SPPA”) provides:
4.9 (1) No person employed as a mediator, conciliator or negotiator or otherwise appointed to facilitate the resolution of a matter before a tribunal by means of an alternative dispute resolution mechanism shall be compelled to give testimony or produce documents in a proceeding before the tribunal or in a civil proceeding with respect to matters that come to his or her knowledge in the course of exercising his or her duties under this or any other Act.
(2) No notes or records kept by a mediator, conciliator or negotiator or by any other person appointed to facilitate the resolution of a matter before a tribunal by means of an alternative dispute resolution mechanism under this or any other Act are admissible in a civil proceeding. 1999, c. 12, Sched. B, s. 16 (3).
46The Respondents argue that there is a distinction between the competency and compellability of a witness; a witness may be competent and provide testimony despite being non-compellable. (Bettes v. Boeing Canada Dehavilland Division, 1989 CarswellOnt 1220 (OLRB))
46We accept that argument. Peter Doris is a competent witness; he is capable of being sworn and giving evidence relating to the issues before the Board. Section 4.9(1) of the SPPA states that he cannot be compelled to give evidence but does not prevent him from giving evidence voluntarily. The section speaks only to his compellability and not to his competence.
47The Applicants submit that Bettes v. Boeing Canada Dehavilland Division is no longer good law as section 4.9 of the SPPA was subsequently passed in 1999. Based on the information we have received, we believe that this decision is still valid law. If the Legislature had wished to contradict this decision, it could have done so in 1999 by including a reference to competency as well as compellability in subsection (1).
48The Respondents have stated that Mr. Doris’ testimony would be confined to his expertise and observations following the Conflict Resolution process.
49Section 4.9(2) of the SPPA will prevent any notes or records made or kept by Peter Doris during his role as mediator from being admissible in this proceeding. We believe that, likewise, the scope of his evidence and any documents that he relies upon must be restricted to information obtained by him after the conclusion of the Conflict Resolution process in the event that he is permitted to testify.
50It has been the practice of this Board for many years to accept the evidence, both as to fact and/or opinion, from agricultural engineers in the employ of the Ministry when those engineers had previously conducted the Conflict Resolution process. As a practical necessity, these persons are sometimes the only resource available to provide the technical information required by the Board to make an informed decision.
51Notwithstanding this practice, the Board has never been called upon to address this issue and some guidance is required for the future. In the past, those witnesses were testifying with the implied consent of all parties.
52The Board finds that strictly speaking, Peter Doris is not prevented from testifying at this hearing by section 4.9 of the SPPA provided that his evidence is confined to his expertise and observations following the Conflict Resolution process. Despite this, however, the appearance on the witness stand of the person who conducted the Resolution process may lead to an apprehension of bias. In point of fact, the Applicants have alleged that he is biased against them.
53Consequently, the Board finds that, generally, the person who conducted the Conflict Resolution process will not be permitted to testify at the hearing save and except where the Board has, prior to the hearing date, approved that person to testify based on evidence that he/she is the sole person within the province who has the expertise or knowledge relating to the specific facts of the case and that the party wishing to call that witness will be prejudiced if that person is barred from testifying.
54Should prior approval be obtained from the Board, the opposing party will have the opportunity at the hearing to use cross-examination and submissions to impeach the witness on the issue of bias and to argue as to the weight to be given to his or her testimony.
55The Respondents have submitted that Mr. Doris is best suited to provide evidence on the farm practices in the Manitoulin Island area and that, if he is prevented from testifying, they will suffer prejudice. The Board believes that they should be given an opportunity to show that he is the sole person in the province who has the expertise or knowledge relating to the specific facts of this case.
56This Board therefore orders as follows:
The Respondents shall disclose to the Applicants within 30 days of the date of this Order any farms used in their agricultural operation, other than those named in paragraph 11 hereof, including their legal description or 911 number description, whether they are owned or leased, if leased the name of the owner and the acreage of each farm.
The Respondents shall disclose to the Applicants within 30 days of the date of this Order their best estimation of the total number of bales produced from all farms in each of the 2017, 2018 and 2019 crop years.
The Respondents shall disclose to the Applicants within 30 days of the date of this Order the type of equipment which is used to incorporate the manure after application.
The Applicants shall be permitted to bring a motion for permission for a site visit by their proposed expert witness.
The Respondents shall be permitted to bring a motion to have Peter Doris approved to testify at the hearing as an exception to the general rule established in this decision.
51With respect to the motion, the Respondents have requested costs of the motion on a full indemnity basis and allege that the motion is frivolous and vexatious. The Board is not prepared to grant that request today.
Released: November 2, 2020