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
Great Lakes Greenhouses Inc v The Corporation of the Municipality of Leamington 2021 ONNFPPB 3
DATE OF DECISION:
2021-04-01
001GreatLakesGreenhousesInc21
STATUTE:
Farming and Food Production Protection Act, 1998
HEARING:
BETWEEN:
Great Lakes Greenhouses Inc-- Applicants
and
The Corporation of the Municipality of Leamington -- Respondents
FILE NO.: 001GreatLakesGreenhousesInc21
DATE: 2021/04/01
IN THE MATTER OF the Farming and Food Production Protection Act, 1998
AND IN THE MATTER OF: An application to the Board under Section 6 of the Farming and Food Production Protection Act, 1998 for a determination as to whether a municipal by-law is restricting a normal farm practice.
AND IN THE MATTER OF: A continuation of a Pre-Hearing Conference to determine the scope of the hearing before the Normal Farm Practices Protection Board as requested by the Applicant.
BETWEEN:
Great Lakes Greenhouses Inc.
Applicant
– and –
The Corporation of the Municipality of Leamington
Respondent
Christopher J. Rae, for the Applicant
Ruth Orton, for the Respondent
HEARD: March 26, 2021 via video conference
Before: Rod de Wolde, Member
Appearances:
Christopher J. Rae, Counsel for the Applicant
Ruth Orton, Counsel for the Respondent
DECISION OF THE BOARD
1The application in this matter is dated January 21, 2021 and is made pursuant to Section 6 of the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 (“Act”). The Applicant alleges that By-law 79-20 of the Corporation of the Municipality of Leamington restricts their Normal Farm Practice.
2A Pre-Hearing Conference was held on February 26, 2021. On March 16, 2021, counsel requested a further Pre-Hearing Conference to determine an issue related to the scope of the hearing. The further Pre-Hearing Conference was held on March 26, 2021.
3The Pre-Hearing Conference order is on hold pending the distribution of this decision to the Parties. This decision addresses the issue related to the scope of the hearing raised by counsel at the March 26th Pre-Hearing Conference.
4This request is brought forward by the Applicants for the Board to provide relief for “identifying and limiting the issues to be adjudicated at the hearing before the Board” and to confirm that “evidence with respect to the adverse impact of that practice is irrelevant”.
5More specifically, the evidence that the Applicant is seeking to limit relates to the impact that artificial greenhouse lighting has on dark sky and bird migration and the relevance of this evidence to determine whether artificial greenhouse lighting is a normal farm practice.
6Counsel for the Respondent clarified as to the type of expert evidence they are planning to rely upon, that being, the effects on human health and the environment including bird migration.
7The Chair stated that it would be unusual for the Board to decide at a Pre-Hearing Conference to limit the type of evidence to be relied upon by the Parties. This would normally be done before a full panel of the Board at the hearing.
8The issue to be determined at the hearing is, “is using artificial lighting in greenhouses a Normal Farm Practice?”.
9In determining whether a practice is a normal farm practice, the Board refers to 6(15) of the Act, which lists the factors the Board must consider in making its determination:
The purpose of the by-law that has the effect of restricting the farm practice.
The effect of the farm practice on abutting lands and neighbours.
Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement.
The specific circumstances pertaining to the site. 1998, c. 1, s. 6 (15).
10The Board also must consider, in its entirety, the legislation under which the Board operates, including the preamble, which states: “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 provincial health, safety and environmental concerns.”
11At this stage, the Board will not impose restrictions on the type of evidence it will allow either party to bring forward at the hearing where a full panel of the Board can assess the relevancy of the proposed evidence.
12To preclude evidence now, without understanding the evidence in the full scope of the hearing, would be premature.
ORDER TO DETERMINE THE SCOPE OF THE HEARING
13The Board therefore orders as follows:
The Board declines to limit the scope of evidence to be disclosed for hearing at this stage.
The Parties are to submit to the Board Secretary proposed dates for disclosure of evidence for the Hearing scheduled to commence the week of July 12, 2021 no later than 4:00 p.m. on Friday, April 9, 2021.
The Board may vary or add to this Order at any time either on request or as it sees fit.
The hearing panel, once convened, may vary this Order as appropriate.
Released: April 1, 2021