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 and Ontario Greenhouse Vegetable Growers 2022 ONNFPPB 04

DATE OF DECISION:

2022-07-04

001GreatLakesGreenhouses21

STATUTE:

Farming and Food Production Protection Act, 1998

HEARING:

BETWEEN:

Great Lakes Greenhouses Inc. - Applicant

and

The Corporation of the Municipality of Leamington – Respondent

and

Ontario Greenhouse Vegetable Growers - Third Party

FILE NO.: 001GreatLakesGreenhouses21

DATE: 2022/06/28

IN THE MATTER OF the Farming and Food Production Protection Act, 1998.

AND IN THE MATTER OF an application to the Normal Farm Practices Protection Board (the “Board”) under Section 6 of the Farming and Food Production Protection Act, 1998 (the “Act”) for a determination as to whether a municipal by-law restricts a normal farm practice.

AND IN THE MATTER OF a motion brought by the Respondent pursuant to Section 8(1) of the Act.

BETWEEN:

Great Lakes Greenhouses Inc. Applicant

– and –

The Corporation of the Municipality of Leamington Respondent

– and –

Ontario Greenhouse Vegetable Growers Third Party

Represented by Christopher Rae

Represented by Piper Morley Represented by Amy Dale

HEARD June 28th, 2022 VIA VIDEO CONFERENCE

Before: Glenn C. Walker, Chair; Rod de Wolde, Member; John Lohuis, Member

Appearances: Christopher Rae and Chris Casher for the Applicant Piper Morley for the Respondent Amy Dale for the Third Party

ORDER OF THE BOARD

Background

1The Applicant brought an application, dated January 13, 2021, alleging that the use of artificial lighting in growing vegetables in greenhouses year-round in Leamington is a normal farm practice which is restricted by By-law Number 79-20.

2Nine other greenhouse operators brought similar applications and the applications were ordered to be heard together during the weeks of July 11, July 18, August 8, and August 15. The Ontario Greenhouse Vegetable Growers sought and received intervenor status on all ten applications.

3All the applications, with the exception of those of Great Lakes Greenhouses Inc. and AMCO Farms Inc., were settled by way of Minutes of Settlement.

4On June 14, 2022, the Respondent municipality passed By-law Number 41-22, being another by-law requiring the abatement of greenhouse light, and repealing By-law Number 79-20. The new by-law is substantially the by-law sought by the applicants who settled with the Minutes of Settlement.

5In its motion, the Respondent municipality seeks an order from the Board that it refuse to hear this application pursuant to Section 8(1) of the Act on the basis that the application is now frivolous.

Analysis and Discussion

6Section 8(1) of the Act provides as follows:

The Board may refuse to hear an application under section 5, 6 or 7 or, after a hearing has commenced, refuse to continue the hearing or to make a decision if in its opinion,

(a) The subject-matter of the application is trivial;

(b) The application is frivolous or vexatious;

(c) The application was not made in good faith; or

(d) The applicant has not a sufficient personal interest in the subject-matter of the application.

7The Respondent municipality argues that the by-law on which the application is based, that is By-law Number 79-20, has been repealed and is no longer in existence; and that consequently the issues in dispute are now moot rendering the hearing of the application frivolous.

8The Applicant does not dispute the Respondent’s argument but requests that instead of refusing to hear the application, the Board adjourn the application sine die and allow the Applicant until November of this year to decide whether it wishes to request an amendment to the application substituting the new by-law for the former.

9The Third Party supports the position taken by the Respondent municipality.

10The Board finds that, with the repeal of By-law Number 79-20, the issues before it are now moot and that proceeding to a hearing of the application, as presently constituted, would be a waste of the time of both the parties and the Board and therefore make the application frivolous.

11The request of the Applicant for an adjournment sine die is unrealistic and unfair to the other parties, who would have to wait until November for the Applicant to make up its mind whether it would proceed with this application by amending the present application to substitute By-law Number 41-22 for former By-law Number 79-20.

Order

12The Board orders that:

(a) The Board refuses to hear the application of Great Lakes Greenhouses Inc. on the basis that the application presently is frivolous;

(b) The hearing dates of July 11 to 15; July 18 to 22; August 8 to 12 and August 15 to 19, 2022 are hereby vacated.

(c) This order is made without prejudice to the Applicant bringing a new application with respect to By-Law Number 41-22.