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

Dale Fawcett vs The Corporation of the Township of Tiny 2021 ONNFPPB 4

DATE OF DECISION:

2021-04-13

009Fawcett20

STATUTE:

Farming and Food Production Protection Act, 1998

HEARING:

January 18-21; February 1; and March 1, 2021

BETWEEN:

Dale Fawcett -- Applicants

and

The Corporation of the Township of Tiny-- Respondents

FILE NO.: 009Fawcett20

DATE: 2021/04/13

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 an electronic hearing to be held pursuant to the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020

BETWEEN:

Dale Fawcett Applicant

– and –

The Corporation of the Township of Tiny Respondent

Dale Fawcett, Self-represented

Paul Dray, for the Respondent

HEARD: January 18-21; February 1; and March 1, 2021 via Zoom

Before:

Kurtis Andrews, Vice-Chair; John Lohuis, Member; William George, Member.

Appearances:

Dale Fawcett, Applicant

Paul Dray, Counsel for the Respondent

Elaine Stephenson, witness for the Applicant

Patricia Michener, witness for the Applicant

Joseph Lisi, witness for the Applicant

James Fawcett, witness for the Applicant

Lee Ann Fawcett, witness for the Applicant

Steven Harvey, witness for the Respondent

Anne Wood, affected landowner

Robert McFarlane, affected landowner

Decision

1The Normal Farm Practices Protection Board (“the Board”) received an Application pursuant to Section 6 of the Farming and Food Production Protection Act, 1998 ("the Act") from the Applicant Ms. Dale Fawcett (“Ms. Fawcett”) dated April 27, 2020. Ms. Fawcett requests a determination as to whether The Corporation of the Township of Tiny (“the Township”) By-law No. 13-032, “A By-law of The Corporation of the Township of Tiny to provide for Maintaining Land in a Clean and Clear Condition” (known as the “Clean Yards By-Law”), restricts a normal farm practice; namely, the piling of certain brush and other materials, purportedly for composting purposes, and the use of inoperable motor vehicles for storage purposes.

2This matter was heard on January 18 – 21, February 1 and March 1, 2021.

3For the reasons that follow, the Board denies the Application.

A. Evidence

4The Tribunal heard evidence from the Applicant, as well as Elaine Stephenson, Joseph Lisi, Patricia Michener, James Fawcett, and Lee Ann Fawcett on behalf of the Applicant. The Tribunal also heard evidence from Steven Harvey on behalf of the Respondent. Public testimony was submitted in writing by Anne Wood and Robert McFarlane in accordance with the Board’s Rules of Procedure 55-57.

Dale Fawcett

5The Applicant testified that she has a degree from the University of Guelph and that she has completed numerous courses and other studies related to agriculture, including studies in biodynamic farming and asparagus cultivation.

6The Applicant testified that she and her husband moved to the Township of Tiny upon purchasing the subject 110-acre farm property in 1975, and they bought another 45 adjoining acres in 1982.

7The Applicant testified that, in 2019, the farm produced hay, asparagus, maple syrup, apples, rhubarb, berries, trees and “by-products from maintenance of agrosilviculture – composting brush piles”. However, when asked to confirm the scope of her farm operation, the Applicant narrowed it down to silviculture and asparagus production. She stated that the “primary” part of her operation is silviculture (70 acres), with a “secondary” component involving asparagus production (2 acres). When asked if there was anything else, the Applicant answered that she grew hay; however, she later confirmed that the hay is in fact grown by a tenant farmer.

8The Applicant describes her farm as a “biodynamic silviculture and horticulture” operation. The Applicant is a self-professed environmentalist, and she testified that she uses no chemicals to grow crops on her property, and she does not allow her tenant farmer to use chemicals either. She also claimed that everything on her farm is interconnected as part of a large “biodynamic” operation, including trees in the treelines and trees and vegetation that surround her home.

9The Applicant testified that, between 1975 and 1984, her family planted approximately 10,000 trees. Historically, she stated that the farm has operated with approximately 30 acres devoted to market gardening, including 10 acres of asparagus; however, the horticulture operation has been limited for several years to only two acres of asparagus. The Applicant provided no evidence of any proceeds from a silviculture operation since she acquired the property in 1975 – 45 years ago.

10With regards to the Applicant’s purported silviculture operation, she did show evidence that she has at least contemplated harvesting timber recently, but she provided no evidence of actual timber sales or demonstrable plans to actually execute any harvesting.

11The Applicant testified that she grows approximately two acres of asparagus. However, aside from her two witnesses who testified that they have bought a small amount of produce from her, the Applicant provided no evidence of produce sales, such as invoices, receipts, or reported farming income.

12The Applicant testified that she markets her asparagus by calling approximately 100 people to let them know when the asparagus is ready and to take their orders. She also indicated that she has a record of these customers, but she refused to produce these records when asked by the Board. As a self-represented litigant, she was cautioned by the Board that withholding such evidence might affect her ability to prove her case, but she nevertheless refused to disclose the claimed records. More generally, the Applicant testified that she estimated her asparagus gross revenues to be $500 in 2020 and $700 in 2019.

13The Applicant confirmed that she does not sell apples from the apple trees near the brush piles, but she lets people pick them.

14The Applicant confirmed that all of her arable land is currently leased to an area farmer, and she uses his Farm Business Registration Number to obtain the farm class property tax rate. She testified that she leases the property to keep the fields clear, to reduce property taxes, and for other income tax benefits. The Applicant confirmed that she had her own Farm Business Registration Number, but it expired approximately 15 years ago.

15The Applicant testified that she has some control over the hay production carried out by the tenant farmer, including a prohibition against using chemicals and limiting the number of cuts to once a year, but it is nevertheless a farm-rental arrangement, as opposed to some sort of crop-share arrangement.

16The Applicant confirmed that she has not reported any farming income for income tax purposes within the past 6-years, and, that if she did, “the government would end up owing [her] money”. She confirmed that this meant that she has achieved no net income during this time, nor did she expect any such profits in the near future.

17The Applicant testified that the derelict cars are used as storage, with one of the cars also serving as a “security deterrent” to make it look like someone was home.

18The Applicant confirmed that the issues with the Township began in November 2020 after she complained about the upkeep of her neighbour’s property, Mr. Robert Joseph. She testified that, when Chief Municipal Law Enforcement Officer Steven Harvey (“Mr. Harvey”) attended to investigate, her neighbour made a corresponding complaint against her regarding her brush piles and derelict vehicles. She testified that she believes that Mr. Harvey was somehow influenced by her neighbour to investigate her instead.

19The Applicant testified that Mr. Harvey suggested that she either burn the brush or “chip” it. The Applicant testified that she declined to burn the brush due to safety and environmental concerns, and that she declined to “chip” it due to costs concerns. She testified that the brush piles could not be moved somewhere else and would eventually decompose.

20The Applicant further testified that she could not locate the brush piles anywhere else on her property, such as out of sight of her neighbour, because no other land would be suitable to locate it there. She claimed that the brush piles are very valuable to her to use as compost for the nearby apple trees.

21The Applicant testified that she created the subject brush piles in order to compost the materials and produce chemical-free compost for use in the apple orchard in particular. She also confirmed that the piles are primarily made up of materials from the immediate surrounding area, and they are located approximately ½ kilometer away from her asparagus patch. She testified that the one pile has only ever been rotated once, in 2012.

22The Applicant testified that one of the subject brush piles is approximately 8-feet from the neighbour’s fence, and another one, the “big one”, is approximately 40-feet from the fence.

23The Applicant stated that the brush piles consist mainly of branches from the apple orchard and other trees located in nearby fence rows, and some of the branches in the piles came from her son’s property. She also testified that the piles provide habitat for wildlife, but claimed that that did not include rats or mice.

24More generally, the Applicant testified that the brush piles serve an integral part of her “biodynamic” farm operation; however, she did not provide any evidence to demonstrate how the brush piles contributed to her purported silviculture or asparagus operation. There was also no evidence provided to show when, if ever, the product of these piles would be used. The Applicant simply claimed, generally, that the piles are valuable and would someday serve to improve the soil of the surrounding apple orchard.

25As it relates to “normal farm practices”, as defined by the Act, the Applicant testified that her immediate neighbour’s practice is to burn brush or push it into the area fence rows. When questioned about her practices, as being “normal farm practices”, she answered that the practices “are normal for [her]”. The Applicant otherwise provided no other evidence regarding normal farm practices.

Elaine Stephenson

26The Applicant initially requested that Elaine Stephenson provide opinion evidence. It was then explained to her by the Board that Ms. Stephenson must be able to demonstrate a sufficient degree of specialized knowledge in order to provide such evidence, and the Board asked if Ms. Stephenson’s CV could be produced in order to consider her qualifications. The Applicant confirmed that she had no such CV to provide. Furthermore, Ms. Stephenson stated herself that she did not consider herself an expert. The Board was therefore not satisfied that she was qualified to provide opinion evidence. As a result, the witness was permitted to only answer questions of a factual nature.

27It is noteworthy that the role of the “expert witnesses” was explained to both parties at the Pre-hearing Conference (“PHC”) of this matter held on June 19, 2020, and neither party indicated that they expected to call any such witnesses. In addition, the PHC order dated July 8, 2021, required all parties to serve and file “experts’ CVs and reports (if any)” by July 31, 2020. No such disclosure was either served or filed by the Applicant.

28Ms. Stephenson testified that she is a 20-year customer of Dale Fawcett. She testified that she bought asparagus from Ms. Fawcett, totalling approximately $40-$50 “at the most” in 2019. She also testified that she pays cash for the produce, there are no receipts, there is no particular sales venue on the property, and she calls ahead to come get produce.

29Ms. Stephenson was not able to confirm actually seeing the produce that she buys being grown on the property, but she did confirm that she has seen a walk-in cooler and harvested produce in wooden crates on the property. Photographs submitted as evidence showed asparagus packed in such wooden crates.

Joseph Lisi

30Joseph Lisi lives in England at the moment. He testified that he works on the Applicant’s property, putting in approximately 4-hours twice a week since 2012. He further testified that he does not get paid for his work, and instead does the work for recreation and sometimes in exchange for produce.

31Mr. Lisi stated that his responsibilities include pruning apple trees, harvesting rhubarb, garlic, squash, potatoes, and apples, cleaning up brush, looking after the Applicant’s flower beds and dumping brush and other organic materials on the brush piles that are the subject to this Application. He stated that he has been piling brush in these locations since 2012, and the contents include four to six inch diameter logs.

32Photographs submitted as evidence showed Mr. Lisi performing some of these tasks.

33Mr. Lisi testified that he has seen asparagus grown on the farm. He confirmed that he never saw any apples, trees or perennials sold.

34On cross-examination, Mr. Lisi confirmed that none of the organic materials put on the subject brush piles come from the asparagus production, and that the brush piles have not produced compost as far as he knows. He also confirmed that the Applicant’s asparagus patch is not located close to the subject brush piles.

35Mr. Lisi testified that the subject brush piles are approximately 4-feet high and 12-feet wide and deep, located five to eight feet from the neighbour’s fence.

Patricia Michener

36Patricia Michener testified that she has been going to the Applicant’s property since around 2001. She stated that she owns 65 acres and has had 10 acres of managed forest for the past 10 years.

37She stated that she sometimes takes walks on the Applicant’s property and sometimes buys produce, including asparagus and maple syrup. She testified that she has paid “a little less than $100” total for these products. She also stated that she has received apples for free from the Applicant.

38Ms. Michener testified that the subject brush piles are around ½ kilometer from the asparagus patch, and approximately 150 feet from the Applicant’s house. She also stated that she personally burns the brush on her own property, approximately every five years, and that the piles provide habitat to rabbits. She stated that it takes around eight years for her brush piles to begin to breakdown.

James Fawcett

39James Fawcett is the Applicant’s son, who lives on a property which adjoins the Applicant’s property. He testified that he does some work for his mother, but he is primarily employed off the farm. He testified that he is “very familiar” with the Applicant’s property, and he sometimes clears brush and produces maple syrup on the property. He testified that the asparagus patch is approximately 2 acres in size. He also stated that the Applicant ran a pick-your-own strawberry operation several years ago.

40Mr. Fawcett testified that he plans on taking over his mother’s farm operation, and hopes to continue the asparagus production and plant a greater variety of trees for future use.

41Mr. Fawcett testified that friends and family gather mushrooms, wild berries and apples on the property, and he “tries to” sell these products. He testified that his maple syrup is sold “by word of mouth”. He also stated that he sometimes uses wood from the Applicant’s forest to fuel the evaporation process.

42When Mr. Fawcett was asked how much revenue was generated by the products grown on the farm, he stated “I don’t know”. When he was pressed for an estimate, he stated that he had “no idea”.

43When Mr. Fawcett was asked who reported the income from products grown on the property, he answered “I believe that would be on my mother”. When asked whose name the Farm Business Registration Number was in, he said that it was his mother’s number.

44Mr. Fawcett provided contradictory testimony regarding who operates the farm business. At first, he testified that he operates the farm and his mother helps out. Later, he stated that his mother is “in charge” of the business.

45Mr. Fawcett testified that the subject brush piles consist of brush from the immediate surrounding area, which includes an apple orchard. He also stated that he believed some cut-off and waste from the asparagus production was dumped on the piles. He confirmed that he has not seen any compost come out of the piles.

46Mr. Fawcett testified that the derelict cars on his mother’s property are used as a “mobile tool-box”, where tools, materials and drawings are kept for the construction of a “quonset hut”. Mr. Fawcett indicated that he is in charge of the construction of the “quonset hut”. He testified that he has not decided what the structure will be used for, but it might be used as a woodworking shop in the future.

47Mr. Fawcett confirmed that all of the hay fields on the property are leased to someone else.

48Mr. Fawcett was evasive at times when answering questions, including when questioned by the Board.

Lee Ann Fawcett

49Lee Ann Fawcett is the Applicant’s daughter. This witness provided testimony on a number of subjects, but she did not provide anything substantially new that was not provided through other witnesses.

50Lee Ann Fawcett was extremely evasive, sometimes combative, and sometimes refused to answer questions, including when she was questioned by the Board. For the reasons that follow, the Board has decided to exclude her evidence altogether.

51During examination-in-chief, the witness testified that she was “actively involved” in her mother’s farm operation in 2020, and her involvement consisted of selling asparagus. She confirmed that she recalled how much asparagus was sold; however, when asked to quantify it, she initially replied “that’s confidential”. When the Board asked her to answer the question, she replied that she did not know. When she was asked to estimate the quantity of asparagus sold, she eventually provided an estimate; however, when asked how much the asparagus was sold for per pound, she again answered “that’s confidential”. Then, when the Board again asked her to answer the question, she stated “I do not recall”. She was then reminded that she was under oath and asked to confirm that she did not recall how much the asparagus was sold for. She confirmed that she did not know. Following this, when it was her mother’s turn to ask reply questions, Lee Ann Fawcett was remarkably capable of confirming the price of asparagus the previous year.

52It was apparent from Lee Ann Fawcett’s conduct that she tailored her testimony in an effort to benefit her mother’s case, by seemingly withholding certain information and then providing it only when cued by her mother.

53A trier of fact has the discretion to exclude relevant evidence where its probative value is outweighed by its prejudicial effect. Even if the Board assumes that Lee Ann Fawcett’s testimony was relevant and material, the Board must still consider whether it should be excluded for the reasons described in David Paciocco and Lee Stuesser, The Law of Evidence, 5th ed. (Toronto: Irwin Law, 2008) at 38:

The fact is that courts have the authority to exclude technically admissible evidence even in the absence of an established exclusionary rule, and even where admissibility is provided for by statute. When can they do so? In R. v. Mohan¹, Sopinka J. described a "cost benefit analysis" - "that is 'whether its value is worth what it costs'". "Costs" in this context is not used in its traditional sense, but in terms of its impact on the trial process. In the language of the cases, Crown evidence, and evidence in civil cases, can be excluded where its prejudice outweighs its probative value.

54The Board has already stated that Lee Ann Fawcett’s testimony provided little, if any, new information. The probative value of her evidence was therefore small. At the same time, due to her conduct described above, the reliability of all of Lee Ann Fawcett’s testimony was highly questionable, meaning that its prejudicial effect to the fact-finding process was potentially significant if allowed.

55In summary, the prejudice caused clearly outweighs the evidence’s probative value. Lee Ann Fawcett’s testimony has been excluded altogether because it will do more harm than good to the fact-finding process.

Steven Harvey

56Mr. Steven Harvey is the Chief Municipal Law Enforcement Officer and is responsible for enforcing the subject by-law.

57Mr. Harvey testified that he became involved with this matter upon responding to a complaint from the Applicant about her neighbour, Mr. Robert McFarlane, who owns the property directly adjacent to the Applicant’s property and immediately near the subject piles of brush.

58According to Mr. Harvey, the Applicant made a complaint to the municipality about a fence that Mr. McFarlane was constructing around his property, as well as various articles of debris surrounding his property. Mr. Harvey testified that the fence at issue was being constructed to shield Mr. MacFarlane’s view of the Applicant’s brush piles. He further testified that, upon his attendance at Mr. MacFarlane’s property, Mr. MacFarlane lodged a corresponding complaint against the Applicant in relation to her brush piles and five vehicles that appeared to be inoperable. Mr. Harvey then attended the Applicant’s property to investigate and subsequently follow up with the Applicant.

59Mr. Harvey testified and produced photographs to show that the subject brush piles were effectively surrounding Mr. MacFarlane’s property on each adjoining side, and they were visible.

60Mr. MacFarlane further testified that he suggested to the Applicant that she either move the brush piles out of Mr. MacFarlane’s view, “chip” the brush, or burn it in a safe manner. According to Mr. Harvey, the Applicant refused all of these options.

61Regarding the vehicles, Mr. Harvey testified that the Applicant removed two of the vehicles following his communications with her, but the other three remained. Mr. Harvey also testified that he gave the applicant an opportunity to demonstrate that the three remaining vehicles were operable, but the vehicles were never started as far as he knows.

62The Board was not informed if the Applicant was ever charged with contravening the subject by-law.

Public testimony – Robert McFarlane

63Mr. MacFarlane originally made himself available to testify in person on January 21, 2021, which would have made him available for cross-examination. However, due to an adjournment request by the Applicant, the hearing and his opportunity to testify was delayed to a subsequent date. As a result, the Board invited Mr. MacFarlane to submit a written statement to summarize what he was going to say, with the understanding that the Board would determine the admissibility of his written statement after the parties received a copy and were given an opportunity to comment.

64Rule 56 of the Board’s Rules of Practice and Procedure states:

(1) The Board prefers evidence to be given orally at the hearing so that the evidence given may be tested by cross-examination. However, where notice of a hearing has been given, any person who does not wish to be a party to the hearing or testify but who wishes to make his or her views regarding the hearing known to the Board may file with the Board a written submission commenting on the hearing, which describes the nature of the person's interest in the hearing and states clearly his or her views regarding the hearing, together with any relevant information that may be useful in explaining or supporting those views.

(2) Before a written submission is made part of the record, the Board shall make it available to all other parties to the hearing and provide an opportunity for parties to comment on its relevance, admissibility, and whether it would be unfair to make the submission part of the record without an opportunity to cross-examine the person making the written submission.

(3) The Board may take into account any such written submission unless, after hearing submissions, it determines that accepting it as evidence would unduly prejudice any party.

65In accordance with the Rule, Mr. MacFarlane’s statement was provided to both parties well in advance, and the parties were provided an opportunity to comment on its relevance, admissibility, and whether it would be unfair to make the submission part of the record without an opportunity to cross-examine Mr. MacFarlane. The Applicant opposed allowing the submissions in writing, while the Respondent did not oppose.

66The Board determined that it would not unduly prejudice either party to allow the written submissions. It found that the submissions did not reveal any essentially new information, and the Board nevertheless allowed the Applicant to submit contesting evidence if she chose to do so. Out of fairness to the participant, Mr. MacFarlane, who was originally available to testify in person but for the Applicant’s requested adjournment, the Board determined that his written submissions would be accepted and form part of the record.

67Mr. MacFarlane stated that he has lived next door to the Applicant for over 15 years. He also stated that the Applicant’s property is visible from his backyard and large amounts of brush are piled along the property line adjoining the Applicant’s property. He further stated that he has had a problem with rat infestations over the past three years, and he believes the rodents inhabit the brush piles. He is also concerned that the piles are a fire hazard.

68Regarding the subject vehicles on the Applicant’s property, Mr. MacFarlane stated that they are visible from his property and an eye-sore, and he is concerned that they could leak fluids which could contaminate his well.

Public testimony – Anne Wood

69Ms. Wood was similarly originally available for in-person testimony on January 21, 2021, and she was similarly invited to provide a written statement on account of the Applicant’s requested adjournment. Her written statement was also similarly accepted on the record for the same reasons that Mr. MacFarlane’s statement was accepted.

70Ms. Wood stated that they bought the farm next to the Applicant’s property six years ago, and she has not seen produce grown or sold at the Applicant’s property since then. She stated that the only farming done at the property that she knows about is done by a tenant farmer.

71In her statement, Ms. Wood also opined that it is not normal to “collect brush and debris and pile it next to your nearest neighbors’ fence and leave it indefinitely to rot down”. She also expressed a concern about attracting vermin and the brush being a fire hazard. While the Board does not accept the opinion of Ms. Wood as admissible, as she has not been qualified to provide such testimony, it nevertheless serves to demonstrate, as a fact, that the Applicant’s neighbours are concerned about the brush piles as potential vermin habitation and a fire hazard.

B. Issues and the Law

The Act

72The objectives of the Farming and Food Production Protection Act, 1998, 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.

73Subsection 6(1) of the Act provides as follows:

No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.

74Subsection 6(3) of the Act limits section 6 Applicants to the following persons:

(a) farmers who are directly affected by a municipal by-law that may have the effect of restricting a normal farm practice in connection with an agricultural operation; and

(b) persons who want to engage in a normal farm practice as part of an agricultural operation on land in the municipality and have demonstrable plans for it.

75It is noteworthy that the Applicant proceeded under the claim that she is a “farmer” pursuant to subsection 6(3)(a); and, in any event, she provided no evidence or submissions as a person “who want[s] to engage in a normal farm practice as part of an agricultural operation”.

76Section 1(1) of the Act defines “famer” as:

[T]he owner or operator of an agricultural operation.

77Section 1(1) of the Act defines “agricultural operation” as:

[A]n agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward.

78Section 1(2) further states that:

For the purpose of the definition of ‘agricultural operation’, ‘agricultural, aquacultural, horticultural or silvicultural operation’ shall be construed to include,

(c) the production of agricultural crops, greenhouse crops, maple syrup, mushrooms, nursery stock, tobacco, tree and turf grass, and any additional agricultural crops prescribed by the Minister;

(h) the storage, handling or use of organic wastes for farm purposes;

79Section 1(1) of the Act defines “normal farm practice” as 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.

80Sections 6(15) of the Act further provides that:

In determining whether a practice is a normal farm practice, the Board shall consider the following factors:

1. The purpose of the by-law that has the effect of restricting the farm practice.

2. The effect of the farm practice on abutting lands and neighbours.

3. Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement.

4. The specific circumstances pertaining to the site.

81Section 6(16) of the Act provides the scope of relief that the Board has jurisdiction to provide regarding a section 6 application:

After the Board has completed the hearing, it shall provide a written decision stating whether the Board is of the opinion that,

(a) The farm practice is a normal farm practice;

(b) The farm practice is not a normal farm practice; or

(c) The farm practice will be a normal farm practice if the farmer makes specific modifications in the practice within the time set out in the decision.

The issues

82For the Applicant to enjoy the shield that is provided by section 6(1) of the Act, each of the following questions must be answered in the affirmative:

1. Is the Applicant a “farmer” as defined in the Act?

2. Is the subject practice part of or ancillary to an agricultural operation?

3. Is the subject practice a normal farm practice?

4. If the practice is a normal farm practice, is it restricted by the By-law?

83The burden of proof is on the Applicant to prove each of the above on a balance of probabilities.

84Given the Applicant’s status as a self-represented party, the Board reminded her several times throughout the proceedings of her obligation to prove the above questions.

C. Analysis

1. Is the Applicant a “farmer” as defined in the Act?

85For the reasons that follow, the Board has determined that the Applicant is not a “farmer” as defined in the Act.

86“Farmer” is a defined term of the Act; being “the owner or operator of an agricultural operation”. The Board is bound by this definition.

87“Agricultural Operation” is also a defined term; being “an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward” [emphasis added].

88The Applicant contended that she is a “farmer”, and confirmed that her purported “agriculture operation” was limited to a silviculture (primary) and asparagus (secondary) production.

89It is noteworthy that the Board received a variety of evidence (mostly testimony) indicating that other products may have been produced on the farm, but there was no evidence that any of these products were produced in significant quantities and, most importantly, there was no evidence of the Applicant producing these products with an “expectation of gain or reward”. In any event, the Applicant herself limited the scope of her purported agricultural operation to silviculture and asparagus production.

90To be successful, the Applicant must prove that:

1. She is engaged in a silviculture and / or asparagus production operation; and

2. That one or both are carried on in the expectation of gain or reward.

91The Board is satisfied that the Applicant is more likely than not engaged in a silviculture and / or asparagus production operation. However, she has failed to prove that she is engaged in either one with an “expectation of gain or reward”.

92Regarding the Applicant’s claim that she carries on a silviculture operation, the evidence showed that, since she has owned the property over a 45-year period, there has been no meaningful harvest, income generated, or any other material “expectation of gain or reward” related to silviculture.

93It is noteworthy that the Applicant argued that term “gain or reward” within the Act could be interpreted to including non-material benefits, such as the pleasure of walking the property, teaching her grandchildren about nature, etc. However, the Board disagrees with such an interpretation.

94While “gain or reward” is not necessarily limited to monetary “gain or reward”, or some sort of other financial benefit, this is the only type of “gain or reward” that has been recognized by the Board to date. The Board rejects the Applicant’s novel argument to include intangibles such as pleasure or happiness, because it is clear that that was not the intention of the legislators who passed the Act. To open up the definition of “gain or reward” to such an interpretation would effectively open the floodgates to anyone with a country property who wanted to do anything they pleased and not be governed by municipal by-laws. The Board takes the position that the protections provided by section 6 of the Act are only to be enjoyed by persons engaged in agricultural activities for bona fide business purposes.

95It is also noteworthy that the Board agrees with the Applicant’s submission that it is not bound by the minimum gross income threshold of $7000.00, as set out in O. Reg. 782/20: Determining Farm Income, under the Farm Registration and Farm Organizations Funding Act, 1993. Just the same, with no income of any kind related to silviculture over a period of 45 years, and no demonstrable plans for it in the near future, The Board finds that there is no the expectation of gain or reward on behalf of the Applicant related to silviculture.

96Regarding the Applicant’s claim that she carries on an asparagus operation, the Applicant has again failed to prove an “expectation of gain or reward”.

97While the Applicant did bring evidence of some asparagus sales, it simply is not enough to convince that Board that she is growing asparagus with “the expectation of gain or reward”. Even the Applicant’s own unsubstantiated claim that she sold $500 worth of asparagus in 2020, and $700 worth in 2019, is not enough to convince the Board that she expects material “gain or reward”.

98The Applicant further provided no financial records, no receipts, no proof of expenses and generally no proof of a bona fide agricultural business. The Applicant has no apparent business plan whatsoever. The Applicant does not have her own Farm Business Registration number, which is not a determining factor, but it is an indicator of a bona fide agricultural business.

99Most tellingly on this point is the fact that the Applicant admitted that she has claimed no income from farming on her income tax returns for at least the past six years. When questioned on this point, she stated “they would only owe me money”. This comment basically sums up her expectations as it relates to her agricultural activities – that she does not expect a “gain or reward”.

100It is worth noting that the Board finds that there was probably a bona fide agricultural operation carried on by the Applicant and / or her husband at some point in the past, but such an operation has not existed for the past six years or longer.

101As a final note on this issue, the Board finds that the rental of the Applicant’s farm land to a tenant farmer does not qualify as part of an agricultural operation carried on by the Applicant. In this regard, the Applicant is merely a landlord.

102Upon the Board’s finding that the Applicant is not a “farmer” as defined by the Act, the Board could end its analysis there and reject the Applicant’s Application for relief. However, in the event that this particular finding is subject to review, the Board will continue its analysis based on the Applicant’s claim that she is operating a silviculture and / or asparagus production operation.

2. Is the subject practice part of or ancillary to an agricultural operation?

103The answer is clearly ‘no’. The subject practices are not “part of or ancillary” to either the purported silviculture or asparagus production operation.

104The subject practices that have been described to the Board are as follows:

1. Piling of brush and other organic materials in and around the Applicant’s apple orchard, purportedly for composting purposes to be spread in and around the apple orchard; and

2. Using immobile vehicles to store tools and other items related to the construction of a “quonset hut”.

105It is worth noting that the reason that an Applicant must show a nexus between the subject practices and an agricultural operation is because the Act is designed to protect normal farm practices, and not simply shield any activity that a farmer chooses to carry out on his or her land. For example, recreational activities, such as gardening and landscaping around one’s home, are not protected by the Act simply because they happen to be carried out by a farmer on his or her farm where they happen to live.

Brush piles / composting

106Generally speaking, piling brush and composting may be a part of an agricultural operation. However, in this case, as with any case involving such activities, the Board must determine if the particular piling of brush and / or composting is part of or ancillary to the particular agricultural operation of the case.

107All of the evidence before the Board, and the Applicant’s own admissions, confirms that the brush in the subject piles has nothing to do with the purported silviculture operation. Instead, the brush is mainly from in or around the old apple orchard.

108The Board heard some evidence suggesting that there was other organic materials in the brush piles, including items from the Applicant’s personal gardens and possibly some waste asparagus, but these items appear to be relatively minor in nature and, on their own, would not have created the large brush piles that are subject the Applicant’s neighbour’s complaint. In any event, these other organic materials have nothing to do with the silviculture operation.

109As far as the Applicant’s purported asparagus operation is concerned, it is an uncontested fact that the brush piles are approximately ½ kilometer away from the asparagus patch. The Applicant also stated clearly, several times, that the brush piles could not be located anywhere else on the property because they need to be near where the input materials originated. If there is any genuine need to compost materials from the asparagus production, it clearly could be done somewhere else.

110The Board therefore finds that there is no material connection between the asparagus production and the impugned brush piles.

111Regarding the Applicant’s claim that the purpose of the brush piles is to produce compost, the Board finds that there is no evidence to support that contention. The Applicant stated, without evidentiary support, that the piles have been turned just once since 2012. In addition, the evidence was clear that no compost has ever been produced in all of that time. Finally, the Applicant claimed that any compost that would be produced would be used in the apple orchard, not in relation to either her purported silviculture or asparagus production. So, even if the Board accepted the Applicant’s claim that the purpose of the piles is to produce compost, there is still no nexus between it and the purported agricultural operations.

Immobile vehicles

112The Applicant’s evidence showed that the subject immobile vehicles were being used to store tools and other items related to her son’s construction of a “quonset hut”, which is essentially an accessory building that could be used for storage or some other purpose (agricultural or not).

113There was no evidence to show that the “quonset hut” was being constructed for agricultural purposes, or that it was even being constructed for the Applicant’s purposes. The Applicant’s son testified that it would likely be used by him as a wood-working shop.

114Based on this evidence, once again, the Applicant has failed to show a nexus between the subject activity and her purported silviculture and / or asparagus operation. Therefore, the use of vehicles as storage cannot be found to be “part of or ancillary” to an agricultural operation.

3. Is the subject practice a normal farm practice?

115Given the Board’s findings respecting the Applicant’s qualification as a farmer, and the lack of a connection between the subject practices and the Applicant’ purported agricultural operation, there is no need to determine, in a hypothetical manner, whether or not the practices might be normal in other circumstances. However, it is worth noting that the Applicant produced no meaningful evidence respecting the normal farm practices of piling brush, composting or using immobile vehicles as storage.

D. DECISION AND ORDER OF THE Board

116The Board finds that:

1. the Applicant is not a “farmer” within the meaning of the Act;

2. the Applicant’s purported silviculture and asparagus production operations do not constitute an “agricultural operation” as defined by the Act; and

3. the subject practices (piling brush and / or composting, and using immobile vehicles as storage) are not part of or ancillary to the Applicant’s purported silviculture or asparagus production operations.

117The Board is consequently of the opinion that the subject practices are not “normal farm practices” as defined by the Act.

118The Application by Dale Fawcett is therefore dismissed.

Footnotes

1. 1R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 (S.C.C.) at ¶18.