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

Great Lakes Greenhouses vs The Corporation of the Municipality of Leamington 2021 ONNFPPB 6

DATE OF DECISION: 2021-05-07

001GreatLakesGreenhousesInc21

STATUTE: Farming and Food Production Protection Act, 1998

HEARING:

BETWEEN: Great Lakes Greenhouses-- Applicants and The Corporation of the Municipality of Leamington-- Respondents

FILE NO.: 001GreatLakesGreenhousesInc21 DATE: 2021/05/07

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 motion to the Board for Party Status by the Ontario Greenhouse Vegetable Growers.

BETWEEN:

Great Lakes Greenhouses Inc. Applicant

– and –

The Corporation of the Municipality of Leamington Respondent

– and –

Ontario Greenhouse Vegetable Growers Moving Party

Represented by Christopher J. Rae

Represented by Ruth Orton Represented by G. Edward Oldfield

HEARD: May 5, 2021

Before: Glenn Walker, Chair

Appearances: G. Edward Oldfield, counsel for the Moving Party, Ontario Greenhouse Vegetable Growers Christopher J. Rae, counsel for the Applicant, Great Lakes Greenhouses Inc. Ruth Orton, counsel for the Respondent, the Corporation of the Municipality of Leamington

BOARD Decision

1Great Lakes Greenhouses Inc. (“GLG”) made an application to the Board pursuant to Section 6 of the Farming and Food Production Protection Act, 1998 (“the Act”) concerning By-law Number 79-20 (“the By-law”) passed by council for the Corporation of the Municipality of Leamington (“Leamington”) on December 8, 2020 alleging that the By-law restricts the normal farm practice of using supplemental lighting in greenhouses for the production of vegetables.

2The Ontario Greenhouse Vegetable Growers (“OGVG”) makes a motion to the Board to be added as a party in this matter. The motion was opposed by Leamington but not by GLG.

3The affidavit of Joseph M. Sbrocchi, the General Manager of OGVG, was tendered to the Board in support of the motion and provides factual context for the motion. The facts contained in the affidavit were not challenged by Leamington.

4OGVG is a marketing board created and empowered by regulations made pursuant to the Farm Products Marketing Act, R.S.O. 1990, c. F.9 and has the power to control and regulate the production and marketing of greenhouse vegetables in Ontario. OGVG licenses all producers, packers and marketers engaged in the production, packing and marketing of Ontario greenhouse vegetables.

5The production of greenhouse vegetables in Ontario is a large and significant portion of Ontario’s agricultural sector, with 40 percent of that production located within the geographic boundaries of Leamington.

6The use of artificial lighting in the production of greenhouse vegetables in Ontario has been a practice of OGVG licensed growers for a period dating back approximately 30 years.

7OGVG has and continues to participate in and help fund research into the use of artificial lighting in greenhouse vegetable growing in Ontario, as that practice and its continued development are of great importance to the continued success and advancement of the production of greenhouse vegetables in Ontario.

8Subsection 6(8) of the Act provides that in section 6 applications, the Board may add any person who applies to be a party and who may be directly affected by its decision as a party to the hearing. This authority is discretionary.

9OGVG has established that it is a “person” within the meaning of this subsection, as it is a corporate body and therefore a person within the meaning of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F.

10OGVG argues that it may be “directly affected” by the decision of the Board in this matter because its mandate is to control and regulate the greenhouse production of vegetables and that, despite the site-specific aspect of the Board’s decision, the decision may have a significant impact on the production of greenhouse vegetables in Leamington and elsewhere in the province.

11Leamington relies upon a much more restricted interpretation of “directly affected” and cites two cases which are reviewed below.

12In Canadian Civil Liberties Association v. Ontario Civilian Commission on Police Services, 2006 CanLII 39455 (ON CA), the Court of Appeal found that a person who alleged that he saw a police officer use excessive force against a woman while escorting her from a store was not directly affected by the officer’s conduct as that term is used in the Police Services Act. The Court stated at para. 38 that by including the word “directly” as an adverb, the Legislature must have intended there to be a degree of proximity before a person “affected” would be able to lodge a complaint.

13In McFayden v. Ontario (Mining & Lands Commissioner), 2007 CanLII 54672 (ON SCDC), the Commissioner denied neighbours of the appellant party status in a fill permit appeal. The neighbours applied to the Divisional Court for a review of that decision.

14Several interesting and applicable points may be gleaned from this decision:

1. The Court concluded that the proper matters to be considered were the nature of the case, the issues which arise and the likelihood of the applicant being able to make a useful contribution to the resolution of the matter without causing injustice to the immediate parties; and

2. The decision maker should identify the applicant’s interest and decide the relevancy of those interests to the matter.

15The Board may also take into consideration the results of its past interpretation of the words “directly affected” in subsection 6(8) of the Act. As remedial legislation, the words should be given a broad and liberal interpretation. The Courts have stated, as well, that considerable deference should be given to administrative tribunals in interpreting their home statute. (Corporation of the Town of New Tecumseth v. Sneig, 2018 ONSC 634, paragraph 22)

16As examples, the Board exercised its discretion to add a party in the following cases:

1 In Cox v. Corporation of the Town of Mono, 2016 CanLII 10661 (ON NFPPB), an abutting neighbour and a citizens’ coalition were granted party status on an application with respect to soil alteration or the importation of fill.

2 In Wanless v. Horsburgh, 2002 CanLII 63054 (ON NFPPB), a municipality was added as a party to an application concerning the calculation of MDS II and the location of a hog barn.

3 In Brunato Farms v. Sabelli, 2010 CanLII 151243 (ON NFPPB), the Town of Leamington was added as a party in a section 5 application.

4 In Faux v. Township of Havelock-Belmont-Methuen, 2000 ONNFPPB 10, neighbours who resided within 120 metres of the subject lands were added as parties in a section 6 application.

5 In Rutt v. Ejavu Raw Energy Farms Inc., 2004 CanLII 76798 (ON NFPPB), the Town of Leamington was added as a party in a section 5 application.

17As can be seen from these examples, the Board has given the words “directly affected” a very broad interpretation, as it is entitled to do.

18In our opinion, OGVG’s interests are relevant to this matter. It also has a nexus to the issues before the Board. GLG is a licensee of the OGVG and OGVG is charged by law to control and regulate the production of greenhouse vegetables.

19Furthermore, the Board finds that OGVG will be able to make a useful contribution to the technical aspects of this case. It funds and participates in the development of artificial lighting in greenhouses.

20Mr. Oldfield has stated that he will work with Mr. Rae, the legal representative for GLG, to ensure that there is no overlap of evidence in the hearing to avoid causing an injustice to Leamington by substantially lengthening the hearing.

21Accordingly, the Board orders that the Ontario Greenhouse Vegetable Growers will be added as a third party to the application.