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

David Trevor Brand vs High Park Farms 2021 ONNFPPB 7

DATE OF DECISION: 2021-05-17

005Brand19

STATUTE: Farming and Food Production Protection Act, 1998

HEARING:

BETWEEN: David Trevor Brand-- Applicants and High Park Farms-- Respondents

FILE NO.: 005Brand19

DATE: 2021/05/17

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 a disturbance is a result of a normal farm practice.

AND IN THE MATTER OF A Motion by the Applicant for an Order requiring an in-person hearing instead of a virtual hearing.

BETWEEN:

David Trevor Brand Applicant

– and –

High Park Farms Ltd. Respondent

D. Bell and A. Petrucci, Counsel for the Applicant

J. Kahn and A. Christiansen, Counsel for the Respondent

HEARD: May 6, 2021 via Video Conference

Before: Glenn C. Walker, Chair

Appearances: A. Petrucci for the Applicant J. Kahn for the Respondent

MOTION DECISION

1The Applicant brought a motion requesting an in-person hearing of the application in this matter instead of a virtual hearing.

2As a result of Covid-19, the Board has been holding virtual hearings for the safety of the parties, their witnesses, the Board panel and staff and will continue to do so until it is considered safe for the courts and all administrative tribunals to recommence in-person hearings.

3This application is dated May 31, 2019 and has been before the Board for almost 2 years.

4In deciding this motion, the Board considered the Applicant’s affidavit evidence referred to below. The Respondent did not provide any evidence but opposed the motion.

5In her affidavit, Becky Brand states that she is not “tech savvy enough to use Zoom due to the nature of these issues”.

6In his affidavit, Brian Mitchell states that: “Due to my very limited computer abilities and no printer, this affidavit and zoom/skype is getting above my computer skill level”.

7In his affidavit, Brian O’Neill says: “As for a hearing before the NFPPB I am not familiar with the virtual meeting methods and would prefer the hearing be held in-person as opposed to Zoom or otherwise. I have never used virtual meeting platforms and am uncomfortable navigating them.”

8Glen LaPointe, age 77, states in his affidavit that he does not own a computer and has never used virtual technology.

9In his affidavit, Trevor Brand, the Applicant, states that: “I have limited experience with virtual platforms and find the process intimidating, anxiety inducing, causes nervousness and cumbersome. I am not familiar with the available features used in virtual forums and I fear that I could make mistakes that could affect the outcome of the hearing. I am not a tech savvy individual and only engage the bare necessities of today’s technology.”

10Catharine Brand, age 76, says in her affidavit that she is very hearing impaired and technologically challenged and feels that taking part in a video meeting would put her through more stress both mentally and physically.

11The Hearings in Tribunal Proceedings (Temporary Measures) Act 2020, S.O. 2020, Chapter 5, Schedule 3 provides that a tribunal may order that a hearing be heard electronically notwithstanding any provision in its Rules or in the Statutory Powers Procedure Act to the contrary.

12The Board has chosen to permit parties to object to the electronic hearing format to ensure that procedural fairness is provided.

13The applicant and those persons he intends to call as witnesses all appear to reside in the vicinity of Petrolia, Ontario. Counsel for the Applicant carries on business in Sarnia, Ontario, which the Board notes is a short drive from Petrolia.

14During argument, Counsel for the Applicant indicated that his law firm has a large number of lawyers and a boardroom and that he is familiar with the Zoom application and uses it in court proceedings.

15The Applicant has appeared at several Pre-Hearing Conferences using the Zoom application.

16It is possible for the Applicant and those of the Applicant’s witnesses who are not “tech savvy” to attend at the law offices of counsel for the Applicant to testify where they can be assisted by counsel and/or his staff.

17Those persons who profess to be nervous about appearing at a virtual hearing should be no more or less stressed than appearing before a panel in an in-person hearing in a formal setting. Those with hearing difficulties will not be hampered anymore than in an in-person hearing.

18The Respondent objects to the request for the matter to be delayed until it is possible to hold an in-person hearing on the grounds that this matter is already almost 2 years old, and such an order would be tantamount to an adjournment sine die. This objection is noted. The Board notes that the delay is partly due to the Applicant dismissing his original counsel and then delaying for some time before appointing a new one.

19The motion is dismissed, and the matter will proceed to a virtual hearing commencing September 20, 2021. If in-person hearings have recommenced by that date, the parties will be offered the possibility to proceed in person on that date using whatever Covid-19 protocols that may be in force at that time.