Normal Farm Practices
Protection Board
1Stone Road West, 2^nd^ 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, 2^e^ étage
Guelph (Ontario) N1G 4Y2
Tél.: (519) 826-3433, Téléc.: (519) 826-4232
Courriel: NFPPB@ontario.ca
Virginia Moir v Omar Kihel- Barbara Dufour
2021 ONNFPPB 1
DATE OF DECISION:
2021- 01- 09
007Moir/Kihel20
STATUTE:
Farming and Food Production Protection Act, 1998
HEARING:
2020- 12- 23
BETWEEN:
Virginia Moir -- Applicants
and
Omar Kihel- Barbara Dufour -- Respondents
FILE NO.: 007Moir/Kihel20
DATE: 2020/12/24
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 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.
AND IN THE MATTER OF a request for review of the Board’s decision dated November 12, 2020, by the applicant Virginia Moir, pursuant to Rule 64 of the Board’s Rules of Practice and Procedure.
BETWEEN:
Virginia Moir
Applicant
– and –
Omar Kihel
Barbara Dufour
Respondents
Self-represented
Represented by Omar Kihel and Zahra Kihel
HEARD: December 23, 2020
Before: Glenn C. Walker, Chair.
DECISION OF THE BOARD
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.
4In a written decision and order dated November 12, 2020, the panel concluded that, for the reasons given in the decision, it was not possible to make a determination on the sole issue before it at that time, that is whether the Respondents’ operation constituted an “agricultural operation” within the meaning of the Act.
5The Board ordered that the issue of jurisdiction be determined as part of the full hearing of the entire matter.
6The Applicant, Virginia Moir, has made a request for a review of the order of the Board dated November 12, 2020 pursuant to Rule 64 of the Rules of Practice and Procedure of the Board.
7The request was made on December 21, 2020. The only part of the Decision and Order that the Applicant requests the Board to review relates to the order that the jurisdictional issue be heard as part of the hearing of the complete application. She requests that the jurisdictional issue be heard separately as previously ordered by the PHC Chair.
8Subsection 21.2(1) of the Statutory Powers Procedure Act provides that “A tribunal may, if it considers it advisable and if its rules made under section 25.1 deal with the matter, review all or part of its own decision or order, and may confirm, vary, suspend or cancel the decision or order. “
9The Board has made a rule dealing with the matter of review. Rule 64 of the Board’s Rules of Practice and Procedure states as follows: “After a decision or order has been issued, if the Board considers it advisable, the Board may review all or part of its decision or order, and may confirm, vary, suspend or cancel the decision or order. Such review shall take place within a reasonable time after the decision or order is made.”
10The Board finds that the request for the review has been made within a reasonable time after the decision and order was made. Dates for a full hearing have not yet been set. The Board also finds that it is advisable to review said decision and order.
11In its decision, the panel gave no compelling reason not to hold a separate jurisdictional hearing as contemplated by the PHC Chair in her PHC Order.
12A preliminary hearing on the issue of jurisdiction has advantages for both parties in that there would be no need to prepare for a full hearing before jurisdiction is established.
13After reviewing the decision and order, the Board has decided to vary a portion of the order.
14Paragraph 1 of the Order (paragraph [18]) dated November 12, 2020 shall be varied as follows:
1(1) The issue of jurisdiction of the Board, namely, whether the Respondents’ operation is an agricultural operation within the meaning of the Act shall be held separately by way of a virtual viva voce hearing. The onus of proof is on the Respondents to show, on the balance of probabilities, that their operation is an “agricultural operation” within the meaning of the Act.
1(2) The parties must serve and file all documentation relating to the jurisdictional issue, including any documents etc. that were previously filed for the written hearing, in accordance with the Procedural Order that will be issued together with the Notice of Electronic Hearing.
1(3) Each party shall serve and file its documentation relating to the jurisdictional issue on or before 30 days prior to the date set for the jurisdiction hearing. Any reply documentation shall be served and filed on or before 15 days prior to the date set for the jurisdiction hearing.
1(4) In the event that the panel finds that it does not have jurisdiction, the application will be dismissed.
15The balance of the Order dated November 12, 2020 relating to the full hearing, if one is required, remains in force
Released: January 8, 2021