Normal Farm Practices Protection Board 1 Stone 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 - Zahra Kihel 2021 ONNFPPB 11

DATE OF AMENDED DECISION:

2021-12-08

007Moir/Kihel20

STATUTE:

Farming and Food Production Protection Act, 1998

HEARING:

May 12^th, 13^th and 14^th ; July 28 and 29, 2021

BETWEEN:

Virginia Moir -- Applicants

and

Omar Kihel- Barbara Dufour- Zahra Kihel -- Respondents

FILE NO.: 007Moir/Kihel20

DATE: 2021/11/01

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, (“Act”) for a determination as to whether nuisances are as a result of normal farm practices.

AND IN THE MATTER OF an electronic hearing held pursuant to the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020.

BETWEEN:

Virginia Moir Applicant

– and –

Omar Kihel, Barbara Dufour and Zahra Kihel Respondents

Self-represented

Represented by Omar Kihel HEARD: May 12, 13, and 14, July 28 and 29 2021

Before: Glenn C. Walker, Chair; Rod deWolde, Member; and William George, Member.

Appearances:

Virginia Moir, Applicant

Omar Kihel, Respondent

Barbara Dufour, Respondent

Zahra Kihel, Respondent

Scott Moir, witness for the Applicant

Ashley Fray-Warnica, witness for the Applicant

Bill Ralph, witness for the Respondent

Mark Tardif, witness for the Respondent

Dawn Lawson-Gula, witness for the Respondent

James Dyck, witness for the Respondent

Rita Tremblay, witness for the Respondent

AMENDED DECISION OF THE BOARD

Procedural Background

1This application, received by the Board on March 6, 2020, was made by Virginia Moir under section 5 of the Farming and Food Production Protection Act, 1998 (the “Act”). In her application she alleges that she is directly affected by disturbances of noise and odour from the agricultural operation of her neighbours, Omar and Barbara Dufour. She also named the Township of Wainfleet as a responding party.

2The Respondents requested that the hearing be held in both the English and French languages. The Board provided a francophone interpreter for all hearings.

3At a Pre-Hearing Conference held on June 23, 2020, the Township of Wainfleet was removed as a party on consent. The Pre-Hearing Conference Chair ordered a written hearing to determine the jurisdiction of the Board relating to the question of “agricultural operation” only.

4The jurisdiction hearing was held in writing before a full panel of the Board with final submissions from the parties being due on October 9, 2020. The Board declined to determine the issue of jurisdiction on the written evidence filed, commenting 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.

5The Board then ordered that the issue of agricultural operation be dealt with along with the other issues at a full hearing.

6The applicant requested a review of this order. The review resulted in an order that the jurisdiction issue be dealt with separately in a virtual hearing.

7The jurisdiction hearing was held on March 29, 2021 and Zahra Kihel was added as a responding party to the application at that time, on consent. At this hearing, the Board determined that the respondents were carrying on an agricultural operation within the meaning of the Act and ordered that the matter proceed to a full hearing commencing on May 12, 2021.

8The virtual hearing of the application proceeded on May 12, 13 and 14, 2021. By the end of the third day of the hearing, the evidence of the Respondents had not been completed and the hearing was adjourned to a date to be determined by the Board.

9By an Order of the Board dated May 17, 2021, the Board ordered that it would, on its own initiative, retain at its own expense, pursuant to Rule 50 of its Rules of Practice and Procedure, a person having technical or special knowledge concerning Minimum Distance Separation to assist the Board and to give expert opinion evidence in respect of that matter. The Board also ordered that once the report of the proposed Board witness had been received, it would be shared immediately with the parties and that a date would be set for the continuation of the hearing at least 20 days from that date to allow time for the parties to prepare for cross-examination of the Board witness or to arrange for an expert of their own to be called in response to the Board witness.

10The Board appointed Daniel Ward, P. Eng. to prepare a report and give expert opinion evidence on the issue of Minimum Distance Separation. His report in English was shared with the parties on June 9, 2021. The French translation, obtained by the Board for the Respondents, was served on the parties on or about July 19, 2021. The report of Sean Colville, B. Sc., P. Ag., who the Respondents intended to call as an expert witness in response to the Board’s witness, was also served on or about July 19, 2021.

11The Board ordered that the hearing re-commence on July 28 and 29, 2021. The Respondents requested an adjournment because of the late receipt of the French language translation of the Ward documents. The Board heard the Respondents’ motion for adjournment virtually on July 26, 2021, denied the request and reserved the right to give reasons at a later date. Those reasons follow.

12The Respondents argued that due to the late receipt of the French version of the Ward report, they had less time than the Applicant to prepare for the cross-examination of this witness. The Applicant opposed the adjournment request.

13The Respondents had plenty of time to retain an expert. His report was shared on or about July 19, 2021.

14The Board observed that Mr. Kihel spoke good English despite French being his native tongue. Mme. Dufour, his wife, speaks little English. Their daughter Zahra Kihel speaks English very well.

15After receiving the English version of the Ward report on June 9, 2021, the Respondents were able to retain Mr. Colville immediately. His Minimum Distance Separation II report shows an application date of June 10, 2021 and a preparation date of June 15, 2021.

16The Respondents are entitled by law to have all Board documents translated into the French language for them. That was done.

17In denying the request for the adjournment, the Board determined that there was no prejudice to the Respondents with respect to the time to prepare for cross-examination of Daniel Ward. They had 8 days after the receipt of the French language version, which was the same time that the Applicant had to prepare for the cross-examination of their expert witness, Sean Colville; that is, 8 days after receiving his report on July 19, 2021.

Factual Background

18The Applicant, Virginia Moir, resides with her husband Scott Moir at 51265 Tunnacliffe Road South, Welland, Ontario, being part of Lot 11, Concession 5 in the Township of Wainfleet in the Regional Municipality of Niagara.

19The Respondents, Omar Kihel, his spouse Barbara Dufour and their daughter Zahra Kihel live next door to the Applicant at 51267 Tunnacliffe Road South, Welland, Ontario.

20The Applicant’s property is 3.89 acres in size and the Respondents’ property is approximately 8 acres in size. Both are zoned Agricultural Zone 4 Rural by the Township of Wainfleet Zoning By-law and permit an agricultural use and livestock. The lots have wooded areas and seasonal wetlands. The Zoning By-law provides for some Environmental Protection and Conservation overlays.

21There are 17 homes located on large lots in this neighbourhood, which is set in a rural area surrounded by farms.

22The Applicant and her husband, Scott Moir, purchased their property approximately 5.5 years ago as a “forever” retirement home. They appreciated that it was located in a peaceful rural setting on a quiet dead-end street in a forested environment.

23After the purchase, they invested a large amount of money in the backyard by installing a large swimming pool, 2 decks, a sauna and a hot tub.

24In 2017 the vacant property to the north was sold to Mr. Kihel and Mme. Dufour who subsequently built a house on this lot.

25Commencing in 2018, the Respondents introduced some chickens and Nigerian dwarf goats onto their property. These miniature goats are less than 2 feet tall at the shoulder.

26As established at the Jurisdiction Hearing, Zahra Kihel (“Zahra”) breeds, raises and sells these miniature goats as part of a commercial enterprise. The Board accepted that this was an agricultural operation within the meaning of the Act.

27At the time of the hearing, there were 9 adult goats and 4 kids on the property. The maximum number of goats Zahra has had at one time to date is 19. At the time of the hearing there were also 12 hens on the property. Although she has also had a rooster on the lot, there was no rooster on the property when Zahra testified.

28Over several years the Respondents constructed 3 small sheds, in a row, close to the lot line shared with the Applicant. All these sheds were eventually occupied by the goats and chickens and were enclosed in a small fenced-in area; although, the animals are allowed to roam freely on all the Respondents’ property. Soiled bedding is cleaned out on a regular basis and disposed of by distributing it about the said property. There is no solid manure pile.

29According to the By-law Enforcement Officer for the Township of Wainfleet, Mark Tardif, each of these sheds had a footprint of 105.06 square feet and did not require a building permit. A building permit is only required where the area of a building exceeds 10 square meters or 107.64 square feet.

30The By-law Enforcement Officer also testified that the minimum side yard for an accessory building in this zone was 3 meters and that all 3 sheds exceeded the by-law requirement from the lot line shared with the Applicant.

31Several witnesses confirmed that had a building permit been required for the sheds which would be used to house livestock, the sheds would have needed to be located in such a manner as to meet Minimum Distance Separation II (“MDS II”) from the neighbours’ homes.

The Complaint

The Applicant’s Evidence

32The Applicant alleged disturbances of odour and noise arising from the animals kept on the Kihel property. She testified that the noise that bothered her was the bleating of the goats and the noise caused by them “banging around” in the sheds at night. She alleged that the cackling of the hens and the crowing of the rooster also disturbed her and her family.

33She described the odour from the goats as being pungent and worse late in the afternoon when the sheds were being cleaned out.

34The Applicant gave the following evidence concerning how these disturbances directly affected her:

• The family could no longer sleep with the bedroom windows open at night because of odour and noise;
• She was no longer able to dry her clothes on the line outside because of the odour;
• She had to run her air conditioning more often because she could not open her windows;
• Her energy consumption increased by 48 per cent as she could no longer dry her clothes outside and was forced to use her air conditioning more often;
• She had to enlarge the deck at the front of the house as she could no longer sit outside on the back decks;
• The presence of stable flies increased;
• On her days off, she is not able to sleep in because of the rooster crowing and has to sleep with a fan running to help to drown out the noise;
• If she has to open the windows, she uses plug-in candles to mask the smell of the goats;
• She has added water features to both her front and back yards in an attempt to mask the noise from the animals;
• She has had to use a fan outside in her back yard to drive the smell away from a family barbecue;
• She created another fire pit in the backyard further away from the sheds to escape the noise and odour; and
• She now has to cover her patio furniture when it is not being used so that the fabric does not absorb the odour.

35In an attempt to mitigate the odour and noise issues, the Applicant has spent significant amounts of money to plant a row of cedars on the property line and install a “natural fence”, both of which attempts were unsuccessful.

36The Applicant’s husband, Scott Moir, and her daughter, Ashley Fray-Warnica, gave evidence which supported the Applicant’s evidence concerning the alleged disturbances.

The Respondents’ Evidence

On the Issues of Odour and Noise

37The Respondents called a number of witnesses to testify on the issue of the alleged disturbances of odour and noise.

38William Ralph, a retired math professor and friend of the Respondents, stated that he has visited the Kihel property many times including walking the property with the goats and has never smelled any manure but only the hay. He could only smell the goats when his face was right down near the goat. He further stated that the bleating of the goats was infrequent.

39Mark Tardiff, the By-law Enforcement Officer, testified that he did not notice any noise or odour from the animals when he visited the property on 2 occasions.

40Dawn Lawson-Gula is a registered nurse and owns a farm where she keeps horses, goats, alpacas, chickens and ducks. She has been to the Kihel property 5 or 6 times and has purchased goats from Zahra. She testified that she did not notice any strong smell or loud noise from the animals during her visits.

41James Dyck, an agricultural engineer employed by the Ontario Ministry of Agriculture, Food and Rural Affairs, visited the Kihel property at the request of the Respondents on December 20, 2019 for an hour and a half. He noticed the odour of hay, the faint odour of urine, and some goats bleating, while the chickens were very quiet.

42Mr. Dyck suggested that the Respondents move the sheds further away from the shared lot line, but they rejected this idea.

43Rita Tremblay is the mother of Mme. Dufour, one of the Respondents. She visits the Kihels regularly. When staying there, she assists Zahra with her chores and also looks after the animals when the Kihel family is on vacation. She stated that she has never smelled any bad smell stating, “never a smell, never, never, never, never” and she testified that she never noticed any excessive noise from the animals. On one occasion she looked after the goats for a period of 10 days, stated that there was no need to clean out the sheds during that period, and that there was still no odour.

Evidence on the Issue of MDS II

44Sean Colville is an agrologist called by the Respondents. He was qualified to give expert opinion evidence with respect to MDS II and normal farm practices. In his report, he confirmed that MDS II did not apply to the sheds on the Kihel property because each shed was under 10 square meters in area and that the buildings were in compliance with MDS Guidelines.

45He further testified that even if the MDS II formula was applied, based on the number of animals present and the capacity of the shelters, an estimated MDS II setback of 37 meters or 121 feet would be required. He testified that the Moir residence is more than 53 meters or 174 feet from the small shelters and therefore the MDS II setback would be met.

46Mr. Colville visited the Kihel property on May 17, 2021 and did not experience excessive noise or obnoxious odours during his site visit. He did not identify any abnormal farm practices.

47Daniel Ward, an agricultural engineer employed by the Ontario Ministry of Agriculture, Food and Rural Affairs, was called as a witness for the Board and qualified to give expert opinion evidence with respect to MDS II. He opined that based on a total maximum number of 15 goats and a combined livestock barn area of 300 square feet, the MDS II setback from the closest shed to the Moir residence would be 84 meters or 275 feet. His estimate of the distance from the closest shed to the Moir residence is 51 meters or 167 feet.

THE ACT

48The objectives of the Act 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.

49Subsections 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.

50A disturbance is defined in the Act as “odour, dust, flies, light, smoke, noise and vibration”.

51“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 use of innovative technology in a manner consistent with proper advanced farm management practices.”

Discussion and Analysis

Issues To Be Determined

52The issues to be determined by the Board are:

1. Has the Applicant proven that she is directly affected by a disturbance of noise and/or odour arising from a farm practice related to the agricultural operation of the Respondents?

2. What is the farm practice at issue?

3. Is the farm practice a normal farm practice?

4. If the farm practice is not a normal farm practice, should the Board order the Respondents to cease the farm practice or to modify the farm practice in such a way that it is consistent with normal farm practice?

Directly Affected by a Disturbance

53The Board finds that the Applicant is directly affected by the disturbances of odour and noise to the extent needed to meet the threshold test.

54In Richardson v. Fox, 2005 ONNFPPB 34, the Board reviewed and established its position with respect to determining whether or not the onus of proof has been met by an applicant before the Board and determined that it was one and the same as the common law test for nuisance in civil actions.

55In coming to this conclusion, we have specifically considered the words of Ferguson J. in Pyke v. Tri Gro Enterprises Ltd. [1999] O.J. NO.3217 (Ontario Superior Court of Justice):

The fundamental issue in a nuisance claim is whether, taking into account all the circumstances, there has been an unreasonable interference with the use and enjoyment of the plaintiffs’ lands.

To establish nuisance, the plaintiff 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 defendant’s 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.

56In determining this issue, the Board must assess the credibility of the witnesses as there appears to be considerable disparity between the Applicant’s witnesses and those of the Respondents on the issue of odour and noise.

57The Board finds that the evidence of the Applicant, Virginia Moir, is credible. It was given in a forthright manner with substantial detail and was supported by the evidence of her husband and daughter as well as videos and sound bytes.

58On the contrary, the evidence of the witnesses called by the Respondents on the issue of noise and odour was sparse in detail.

59The witnesses Tardiff, Dyck and Colville attended on the subject property for short periods of time and on only one or two occasions. Although their evidence is believable, it is quite probable that they would not have experienced significant noise or odour events on those short visits.

60Although the witness, William Ralph, testified that he had visited the property many times, he appears to be a close friend of the Respondents and his evidence must be viewed in that light.

61The evidence of Dawn Lawson-Gula must as well be viewed in light of her familiarity with the odours and noise on a small farm operation.

62Finally, the testimony of Rita Tremblay, a close relation of the Respondents, must be suspected of being biased. Her denials of any odour even when doing chores for Zahra is quite frankly not believable.

63In reconciling the evidence of the Applicant’s witnesses and the evidence of the Respondents’ witnesses, the Board accepts the evidence presented by the Applicant where it conflicts with that of the Respondents on the issue of noise and odour.

64This result is supported by the monetary expenditures made by the Applicant in order to deal with the noise and odour issues as set out in her evidence above. Although some of these projects might have been undertaken in any event, the building of the “natural fence” and the planting of the cedar row appear to be directly related to the alleged disturbances.

65The Board finds that the Applicant has established that she is directly affected by the alleged disturbances of noise and odour and that these disturbances have met the threshold test.

66We find that the Applicant has proven on the balance of probabilities that she has suffered an unreasonable and substantial interference with the use of her property.

67We note that the properties are zoned for agriculture and that the keeping of livestock is a permitted use. We also note that, outside of the immediate neighbourhood, the land use is predominantly used for farming; although the immediate neighbourhood, including the lands of the Applicant and the Respondents, is predominantly a residential use consisting of 17 homes on large lots.

68By introducing the goats, after the Applicant had acquired her home, the Respondents essentially changed the character of the neighbourhood. There was no evidence of any other livestock operations in the immediate neighbourhood other than some neighbours keeping chickens.

69No other neighbours were called as witnesses; however, the Applicant presented a letter signed by some neighbours which supported her position.

70Although the raising and selling of the goats has been determined to be an agricultural operation within the meaning of the Act, these animals are basically being raised for sale as pets and there is no evidence supporting the value of the operation to the public, which could be balanced against the refusal of the Respondents to modify their practices or their failure to take precautions in response to the concerns of their neighbour.

What is the Farm Practice?

71The husbandry practices of the Respondents, and Zahra in particular, are not in question here. The farm practice at issue is the location of the buildings which house the livestock.

Is the Farm Practice a Normal Farm Practice?

72Minimum Distance Separation (MDS) is a proactive land use planning tool applied by a municipality at the time of a building permit application to reduce future odour complaints from livestock facilities by separating incompatible uses. Compliance with MDS is considered to be a normal farm practice. It should be noted that it has no application to noise complaints, but compliance with the required setback will also reduce noise to some extent.

73MDS II setback is calculated when someone wishes to construct or expand a livestock facility near existing development such as a neighbour’s house. The trigger is the building permit application for the livestock facility.

74The setback is calculated based on 4 factors: Factor A - odour potential, typically the type of livestock to be housed; Factor B – size of operation; Factor C – expansion factor to reflect new or existing operation and Factor D – manure type.

75The Respondents relied upon the fact that since all of the sheds were less than 10 meters square, they did not require a building permit for any of them; consequently, they were not required to comply with MDS II.

76It is quite apparent to the Board, looking at the size of each individual shed, that the Respondents were well aware that if they kept the buildings just under 10 meters square, they would not need to apply for a building permit. What is not clear is whether they were intentionally avoiding compliance with MDS II.

77The fact that this is a relatively small operation does not mean that the sheds are not livestock facilities within the meaning of MDS II.

78Zahra stated that she intended to expand her business, which would consequently mean the construction of more livestock facilities.

79If the present practice was followed, the Respondents could continue to construct similar sheds, each less than 10 meters square, thus avoiding the building permit process and the application of MDS II in the future.

80The Board retained an expert witness, Daniel Ward, to prepare a MDS II calculation for the separation distance between the closest shed to the closest part of the Applicant’s home. That distance was determined to be 84 meters or 275 feet. Using Google Maps, he estimated that the distance from the shed to the house was 51 meters or 168 feet.

81The Respondents also retained an expert witness, Sean Colville, to prepare a MDS II calculation. That distance was determined to be 37 meters or 121 feet. Again using Google Maps, Sean Colville estimated the distance from the shed to the house to be 53 meters or 174 feet.

82The Board understands from the evidence that it is customary to use Google Maps to determine distances in these circumstances.

83In examining the 2 computer calculations for MDS II prepared by these 2 experts, the only difference in the numbers used for the 4 factors appears to be Factor C, where the Board witness used 1.14 for the first livestock facility constructed on a lot and the Respondents’ witness used a factor of 0.50. Both witnesses used the same numbers for Factor A (0.7), Factor B (150) and Factor D (0.7).

84The Board’s witness was instructed by the Board to do the calculation as if the Respondents were intending to build a first livestock facility with a total area of 300 square feet, being the approximate aggregate square footage of the 3 sheds and a total of 15 goats (no chickens).

85The Respondents’ witness prepared his calculation based on animal numbers only; 13 for existing maximum numbers of chickens with an estimated livestock barn area of 1 square meter (10.77 square feet) and 10 for existing maximum number of goats with an estimated livestock barn area of 19 square meters (215 square feet).

86The Board prefers its approach and that taken by its expert witness. That approach takes into account the actual aggregate area presently being used to house livestock. In other words, had the Respondents built a building with an area of approximately 300 square feet, they would have had to comply with MDS II with a setback of 84 meters or 275 feet. That would put the livestock facility approximately 100 feet further away from the Applicant’s home.

87The Board finds that the present farm practice of housing the livestock in 3 separate sheds, which do not comply with MDS II in accordance with the Board’s finding, is not a normal farm practice. The onus is on the Respondents to prove a normal farm practice and they have failed to do so.

88Mandated by the Provincial Policy Statement, compliance with MDS has been found to be a proper and acceptable standard established and followed by similar agricultural operations under similar circumstances. It applies to all agricultural operations including small ones like this one.

89In these circumstances, it is reasonable for the Board to apply this standard in order to deal with an odour complaint.

Modification of the Farm Practice

90The Board further finds that the farm practice will be a normal farm practice if the 3 sheds are moved so that all the sheds are at least 84 meters or 275 feet from the closest corner of the Applicant’s dwelling and also comply with MDS II with respect to dwellings on any other abutting land; or, in the alternative, the Respondents must cease to use these sheds for the housing of livestock and construct a new shed or sheds in compliance with MDS II as determined by the Board.

ORDER OF THE BOARD

91The Respondents shall have 8 months from the release date of this decision to move the sheds so that the farm practice will become a normal farm practice as determined by the Board in paragraph 90, failing which the Respondents shall cease to house any livestock in the said sheds.

92If the Respondents choose not to move the sheds, they shall cease to use them to house livestock after 8 months from the release date of this decision.