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 8

DATE OF DECISION:

2021-04-09

007Moir/Kihel20

STATUTE:

Farming and Food Production Protection Act, 1998

HEARING:

2021-03-29

BETWEEN:

Virginia Moir -- Applicants

and

Omar Kihel- Barbara Dufour- Zahra Kihel -- Respondents

FILE NO.: 007Moir/Kihel20

DATE: 2021/04/09

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 disturbances are as a result of normal farm practices.

AND IN THE MATTER OF a hearing to determine whether the respondents’ operation meets the criteria of “agricultural operation” as defined by the Farming and Food Production Protection Act, 1998.

BETWEEN:

Virginia Moir Applicant

– and –

Omar Kihel Barbara Dufour Zahra Kihel Respondents

Self-represented

Self-represented

HEARD: March 29, 2021

Before: Kurtis Andrews, Vice-Chair; Rod de Wolde, Member; William George, Member.

Appearances:

Virginia Moir Omar Kihel Barbara Dufour Zahra Kihel

DECISION OF THE BOARD

1. Background

1The Applicant, Ms. Virginia Moir, made an application to the Board under Section 5 of the Farming and Food Production Protection Act, 1998 (the “Act”) alleging disturbances consisting of odour and noise, arising from the operation of the Respondents, Omar Kihel, Barbara Dufour and Zahra Kihel.

2A Pre-Hearing Conference (“PHC”) was held on June 23, 2020. The PHC Chair determined that a preliminary hearing on the issue of the jurisdiction of the Board should be held separately, in writing, and that the onus of proof should be on the Respondents to prove, on the balance of probabilities, that their operation is an “agricultural operation” within the meaning of the Act.

3The written jurisdictional hearing was held before a full panel of the Board.

4On November 12, 2020, the Board released its decision, declining to make a determination regarding jurisdiction due to various procedural deficiencies of the parties’ submissions, and it instead ordered that the question of jurisdiction be determined during a full hearing of the matter on a date to be determined.

5On December 21, 2020, the Applicant made a request for a review of that order, pursuant to Rule 64 of the Rules of Practice and Procedure of the Board, insofar as the Applicant took the position that the question of jurisdiction should be determined separately, before the full hearing.

6In a decision dated January 8, 2021, the Board granted the Applicant’s request and ordered as follows:

The issue of jurisdiction of the Board, namely, whether the Respondents’ operation is an agricultural operation within the meaning of the Act shall be held separately by way of a virtual viva voce hearing. The onus of proof is on the Respondents to show, on the balance of probabilities, that their operation is an “agricultural operation” within the meaning of the Act.

7An electronic hearing on the issue of jurisdiction was subsequently held before a full panel of the Board on March 29, 2021.

8During the course of the March 29, 2021 hearing, it became evident that Zahra Kihel, the daughter of the original Respondents, Omar Kihel and Barbara Dufour, was actively involved in the purported farming activities, and so she was added as a Respondent upon consent of all of the parties.

2. Evidence

9The Applicant elected to provide no evidence.

10Most of the Respondents’ evidence was presented by Zahra Kihel.

11Ms. Kihel testified that she was currently raising seventeen miniature dairy goats (3 males, 7 females, and 7 kids) for commercial purposes. She stated that she sells some goats and keeps some for breeding purposes. She also stated that she plans to expand her business, but the scope of her expansion will depend on market demands in the coming months and years.

12Ms. Kihel testified that her goats are housed in two 10’x10’ sheds at night and are allowed to roam in a five-acre pasture during the day. The entire property, which is owned by the Respondents Mr. Kihel and Ms. Dufour, is eight acres. The mature female goats are typically milked twice a day.

13Ms. Kihel stated that she typically sells her goats for $950.00 each, and there is currently a waiting list of customers. She testified that her goats are registered.

14Ms. Kihel testified that she had no revenues from her goat business in 2017, but she had approximately $2,000.00 in gross revenues in 2018, she reported $5,935.00 in gross revenues to CRA in 2019, and she expects her reported 2020 gross revenues to be approximately $4000.00.

15Ms. Kihel explained that her 2020 revenues were smaller than 2019 because she elected to keep more goats for breeding purposes. She also confirmed that she has not made any profits from her business to date.

16Ms. Kihel testified that she operates as a sole-proprietor, she has a formal business plan, and operates under a registered business name of “Joyful Meadow”. She testified that, according to her business plan, she should realize a net profit of approximately $3000.00 in 2021, $14,000.00 in 2022, and $20,000.00 annually thereafter.

17Ms. Kihel confirmed that her goat-business is a part-time endeavour at the moment while she is a full-time university student. The precise future of her business, if it is to continue, will depend on its actual profitability over the next few years.

18In addition to her goat-business, Ms. Kihel testified that she is also embarking on a flower business and small-scale egg business; however, neither of these ventures appears to be related to the Applicant’s complaints.

3. Issues and the Law

The Act

19The only issue to determine for the purpose of this jurisdictional hearing is whether or not the Board has jurisdiction to determine the matter. Correspondingly, the only question to answer at this time is whether or not the Respondent(s) operate an “agricultural operation” as defined by the Act.

20Subsection 5(1) of the Act provides that: “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”. This section of the Act sets out the Board’s jurisdiction, and it is dependent upon the Act’s definition of “agricultural operation”.

21“Agricultural operation” is defined in subsection 1(1) as meaning “an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward”. [emphasis added]

22The definition of “agricultural operation” is expanded in subsection 1(2) to include the growing, producing or raising of livestock.

Position of the Parties

23The Applicant conceded that Ms. Kihel’s activities “may be” an “agricultural operation” as defined by the Act.

24The Respondents take the position that they are an “agricultural operation” as defined by the Act.

4. Analysis

25The sole question to answer is whether or not the Respondent(s) operate an “agricultural operation” as defined by the Act. While the parties seem to agree on this point, the Board must satisfy itself in order to proceed to a full hearing.

26There appears to be no question that the Respondent’s activities fall under the expanded definition found at subsection 1(2) of the Act, namely the “growing, producing or raising” of “livestock”. The question is therefore narrowed to determine whether the Respondent(s) are carrying out these activities “in the expectation of gain or reward”.

27Based on the evidence of Ms. Kihel, the Board has determined that Zahra Kihel’s miniature milking goat business is being carried out “in the expectation of gain or reward”, and so she meets the threshold of “agricultural operation” as defined by the Act.

28Ms. Kihel provided very detailed testimony regarding her past revenues and expected future profits. While she has not apparently profited from her business so far, it is clear that she expects to profit in the very near future.

29In order to qualify as an “agricultural operation”, as defined by the Act, one must not necessarily prove profits. What must be proven, on a balance of probabilities, is that the proprietor is motivated by the expectation of gain or reward; rather than, for example, some sort of hobby or solely for personal interest. In this case, Ms. Kihel testified that she expects to earn a profit this year and subsequent years. She also testified that she will only continue the operation if it eventually earns a profit.

30Ms. Kihel’s evidence was specific and credible. She has met the required burden of proof, being “on a balance of probabilities”.

31It is noteworthy that the Board 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. It is also noteworthy that it would be counter to the purpose of the Farming and Food Production Protection Act, 1998 if the Board was to deny jurisdiction over matters involving burgeoning start-up farming operations, especially considering the obvious consequence of many if not most start-up businesses which incur disproportionate start-up costs and net financial losses before it is even possible to eventually earn a profit.

5. ORDER OF THE Board

32The Board orders as follows:

1. The Normal Farm Practices Protection Board Hearing Application, stamped as received by the Board on March 6, 2020, and submitted by Virginia Moir shall be amended to indicate the Respondents as follows:

a. “Omar Kihel, Barbara Dufour and Zahra Kihel” under “Name of person or municipality against whom the complaint is directed.”

2. The activities carried out by the Respondent, Zahra Kihel, as it relates to her miniature dairy goat business, is an “agricultural operation” as defined by the Act, and the Board therefore has jurisdiction to hear the matter.

3. The application by Virginia Moir will be heard by the Board beginning at 10:00 a.m. on Wednesday, May 12, 2021. A Notice of Hearing and accompanying Procedural Order will be issued.

4. The parties shall serve on all other parties and file with the Board by email or USB key, all relevant documents, including, but not limited to, a witness list, witness statements, expert CVs and / or reports, photographs, audio recordings, video recordings, maps, plans and any other documents to be relied upon as evidence according to the following schedule:

a. The Applicant shall provide her documents and things to the Respondents on or before Monday, April 12, 2021, 4:00 p.m.

b. The Respondents shall provide their responding documents and things to the Applicant on or before Monday, April 26, 2021, 4:00 p.m.

c. The Applicant shall provide her reply documents and things to the Respondents on or before Monday, May 3, 2021, 4:00 p.m.