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

2024ONNFPPB02

FILE NO.: 001Kendall24

DATE: 2024/05/02

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 (“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 a normal farm practice, and 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 ruling pursuant to Rule 8(1) of the Board’s Rules of Practice and Procedure.

BETWEEN:

Sandra Kendall Applicant

– and –

Jose and Maria Connie Melo and Township of King Respondents

Self-Represented

Represented by Steven Chadwick and Christopher Lee Tom Halinski

Heard: In Writing

Before: Glenn C. Walker, Chair, Rod De Wolde, Member, and John Lohuis, Member

ORDER OF THE BOARD

1. The Board received an application under both Sections 5 and 6 of the Farming and Food Production Protection Act, 1998, S.O. 1998, c.1 (“Act”), on January 31, 2024, from the applicant, Sandra Kendall.

2. After considering the application, the Board issued a Preliminary Order on February 7, 2024, which stated that it constituted notice to the parties that it was considering dismissing the application without a hearing pursuant to Rule 8(1) of the Board’s Rules of Practice and Procedure on the basis that the Board lacked jurisdiction. The Preliminary Order gave the parties the opportunity to make written submissions as provided for in Rule 8(2).

3. Written submissions were provided by the applicant and each of the respondents. Although not stated in the Preliminary Order, the applicant requested and was granted the right to reply with respect to each of the respondents’ written submissions.

4. Rule 8(1) provides as follows:

The Board may dismiss an application without holding a hearing, or, after a hearing has commenced, refuse to continue with the hearing or make a decision if:

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;

d. The applicant has not a sufficient interest in the subject matter of the application; or

e. The proceeding relates to matters that are outside of the Board’s jurisdiction.

5. Subsection 8(1) of the Act also provides that:

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.

Background Facts

6. The applicant, Sandra Kendall (“Kendall”) and Paul Davidson are the registered owners in fee simple of the property legally described as part of Lot 26, Concession 8 in the Township of King and municipally known as 5840 18th Sideroad, Schomberg, Ontario (“Kendall Property”).¹

7. Jose Melo and Maria Connie Melo (“Melos”) (named in the application as Jos and Connie Melo), aged 82 and 79 years respectively, are the registered owners in fee simple of the property legally described as Part Lot 26, Concession 8 in the Township of King and municipally known as 16105 Hwy 27, Schomberg, Ontario (“Melo Property”).²

8. Since approximately 2017 there has been a dispute between Kendall and the Melos concerning the use of the Melo Property.

Section 5 Application

Applicable Provisions of the Act

9. Subsection 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. (emphasis mine)

10. Subsection 5(2) provides that every application shall state the nature of the complaint, the name and address of the applicant and the name of the person carrying on the agricultural operation and the location of the operation.

11. Subsection 5(3) provides that, subject to Section 8, the Board shall hold a hearing in respect of each application.

12. “Agricultural Operation” is a term defined in Section 1 of the Act. It states that an “agricultural operation” means an agricultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward, and includes activities set out in subsection 1(2) of the Act.

13. Subsection 1(1) of the Act contains a definition of “disturbance”. There are 7 disturbances or nuisances that are covered by the Act. These are odour, dust, flies, light, smoke, noise and vibration. As can be seen from subsection 5(1), these must arise from an agricultural operation.

Failure to Establish the Existence of an Agricultural Operation of the Melo Property

14. The application form found on the Board’s website and the one completed by the applicant specifically states for section 5 claims: “Complete this section only if you are directly affected by a disturbance from an agricultural operation.”

15. It is important that the nature of the agricultural operation in question be identified in the application so that the Board can determine that the alleged disturbances do not arise from some industrial or non-agricultural commercial operation. If the complaints arise from a source that is not an agricultural operation as defined in the Act, it has no jurisdiction.

16. The applicant’s application names 6 alleged disturbances, namely: noise, odour, dust, light, vibration and smoke.

17. When directed by the application to describe how the disturbance has affected the applicant, the reader is referred to an attached email dated January 31, 2024.

18. A review of that email document reveals that it does not disclose the nature of any agricultural operation on the Melo Property.

19. When given the opportunity to address this deficiency in her submissions, the applicant cited the following as agricultural activities:

a) Draining, irrigating or cultivating land - Subsection 1(2)(a).

b) The operation of agricultural machinery and equipment - Subsection 1(2)(e).

c) The application of fertilizers, soil conditioners and pesticides - Subsection 1(2)(f).

d) Ground and aerial spraying - Subsection 1(2)(g).

e) The processing by a farmer of the products produced primarily from the farmer’s agricultural operation – Subsection 1(2)(i).

f) Activities that are a necessary but ancillary part of an agricultural operation such as the movement of transport vehicles for the purposes of the agricultural operation – Subsection 1(2)(j).

g) Any other agricultural activity prescribed by the Minister conducted on, in or over agricultural land – Subsection 1(2)(k).

20. This recital of portions of the Act does not help to support the applicant’s case as it does not identify the nature of the purported agricultural operation on the Melo Property.

21. In paragraph 10 of the Melo Submissions, they state that the Melo Property has been continuously used for agricultural purposes since well before the 1970’s, including the operation of a nursery and/or commercial greenhouse and for uses, buildings, and structures accessory thereto.

22. In her reply document, the applicant questions “where is the nursery and greenhouse referred to in Item 10 of the Melo submissions” leading the Board to surmise that this is not a current use of the property.

23. The Board is not satisfied that the applicant has established that there is some or any kind of agricultural operation, as defined by the Act, on the Melo Property. Furthermore, she has failed to establish a nexus between any of the alleged disturbances and any purported agricultural operation on that property.

24. As the onus to establish standing to bring an application to the Board under Section 5 is on the applicant and she has not succeeded in alleging that there is an agricultural operation as defined in the Act on the Melo Property, the Section 5 application should be dismissed on the basis that the proceeding relates to matters that are outside of the Board’s jurisdiction pursuant to Rule 8(1) of the Board’s Rules of Practice and Procedure.

Issues Raised by the Melos

25. In the Melo Submissions, their counsel has raised 4 issues which the Board will now address in the alternative.

Is the Application Vexatious

26. The Melos submit that the Board should refuse to hear the application pursuant to section 8(1)(b) of the Act because the application is vexatious.

27. On or about September 22, 2023, Sandra Kendall commenced an action in the Ontario Superior Court of Justice against Jose Melo and Maria Connie Melo.³ These are the same parties as in the application presently before the Board.

28. The claim is for damages for nuisance in the amount of $35,000,000 and inter alia a mandatory Order restraining the Melos from all commercial and industrial-related activities that interfere with the use and enjoyment of the property of the Plaintiff.

29. The nuisances are alleged to be noise, dust, smoke, fumes, odour and vibration.

30. A Statement of Defence and Counterclaim have been filed by the Defendants but no Defence to the Counterclaim has yet been delivered.

31. The Board accepts that the allegations of nuisance in both the application to the Board and the court action involve the same parties, arise from the same factual matrix and the same alleged nuisances, namely: noise, dust, smoke, odour and vibration. The only difference being the substitution of fumes for light in the Statement of Claim.

32. If Kendall should establish that there was an agricultural operation on the Melo Property that produced any of the disturbances she alleges, the Board cannot award damages, but it can order the Melos to cease any practice causing the disturbance if it is not a normal farm practice.⁴ The latter is the same remedy sought by Kendall in the court action.

33. The Board accepts the submissions of the Melos that this multiplicity of proceedings amounts to an abuse of the Board’s process.

34. The Ontario Court of Appeal has defined “vexatious” as being “broadly synonymous with the concept of abuse of process developed by the Courts in the exercise of their inherent right to control proceedings”.⁵

35. The doctrine of abuse of process engages the inherent power of a court to prevent the misuse of its procedure in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.⁶

36. Although the Board has no inherent jurisdiction, the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22 provides in subsection 23(1) that a tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

37. The doctrine of abuse of process seeks to promote judicial economy and prevent a multiplicity of proceedings.⁷

38. A new proceeding that asserts the same claims as an existing proceeding, and that would amount to relitigating the same issues amounts to an abuse of process. This doctrine applies to proceedings before courts and administrative tribunals alike.⁸

39. For these reasons, the Board finds that, in the alternative the Board should refuse to hear this application on the grounds that it is vexatious pursuant to subsection 8(1)(b) of the Act.

Was the Application not Made in Good Faith

40. Counsel for the Melos poses a theory that Kendall is seeking a decision from the Board to the effect that the Board has no jurisdiction to hear the application concerning the disturbances because the operations on the Melo Property are commercial or industrial in nature in order to bolster her position in the court action where the Melos assert that the operations on the Melo Property are primarily agricultural.

41. The Melos seek to have the Board refuse to hear the section 5 application on the grounds that it was not made in good faith pursuant to subsection 8(1)(c) of the Act.

42. The Board does not accept this argument which is clearly suppositional.

43. The Board is dismissing the section 5 application because the applicant has failed to identify an agricultural operation on the Melo Property. This does not mean that one could possibly exist.

Alternative Dispute Resolution

44. The Melos submit that the Board should dismiss the application as the parties have not participated in the Ministry’s Farm Practices Conflict Resolution Process in accordance with Rule 60 of the Board’s Rules of Practice and Procedure.

45. At the time the Preliminary Order was issued on February 7, 2024, the Board had not yet had an opportunity to confirm whether the parties had been through this process. Kendall’s answer to this question on the application form was unclear.

46. On February 9, 2024, the Board was able to confirm that this process had been undertaken and had failed by way of an email from the Environmental Management Branch of the Ministry.

47. In any event, the Board can waive this requirement where there appears to be no chance of the mediation being successful.⁹

Lack of Evidence

48. The Melos submit that the evidence filed by Kendall in support of the section 5 application falls short of what is required for the Board to find that Kendall is a person directly affected by a disturbance, let alone a disturbance from an agricultural operation.

49. This argument demonstrates a misconception of the purpose of the application form submitted by the applicant and the basis on which the Board accepts jurisdiction.

50. The application merely requires a short statement as to the nature of the agricultural operation and how the alleged disturbances from that agricultural operation are affecting the applicant and her family. Much like a Statement of Claim in a court action, all that is necessary are allegations that establish standing and jurisdiction. Evidence will be produced later at a hearing.

Section 6 Application

Applicable Provisions of the Act.

51. The following are the subsections of section 6 which are applicable to this case:

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

(2) A person described in subsection (3) or a municipality may apply to the Board, in a form acceptable to it, for a determination as to whether a practice is a normal farm practice for the purpose of the non-application of a municipal by-law.

(3) An application may be made by,

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.

(4) Every application must,

a. Contain a copy of the by-law in question;

b. State the by-law number, the date it was passed, the name of the municipality that passed it and the address of the municipal offices;

c. Described the practice to be reviewed; and

d. Contain the name and address of the farmer or, if the applicant is not a farmer or a municipality, of the applicant.

(5) The Board may refuse to hear an application if it is of the opinion that the applicant does not have a direct personal interest in the outcome of the application or whose main reason is other than to be able to carry on a normal farm practice.

(6) Subject to subsection (5) and section 8, upon receiving an application under subsection (2), the Board shall hold a hearing to determine whether the practice in question is a normal farm practice.

The Applicant’s Section 6 Application Form

52. In her section 6 application, Kendal cites By-law number 81-142 of the Township of King, the purpose of which is to prohibit and regulate certain types of noise within the Township.

53. The application form asks the applicant to describe how the by-law is affecting your farming practices and Kendall provided the following:

As is Ontario law Municipalities have obligations to citizens as a whole, which put them in a different position than an ordinary person. The duty to protect residents requires that the bylaws will be enforced.

In my situation, the affect [sic] of the non enforcement of the by laws and use of zoning at this agricultural property 16105 highway 27 is horrendous. The control of 16105 highway 27 has destroyed my fish hatchery and the reasonable expectation of enjoyment of my farm activities.

Applicant’s Submissions

54. In her submissions referring to her section 6 application, Kendall states that the relief that she is seeking is to have the zoning and operations of the Melo Property conform to normal farm practices and the allowable operations to the RU1 zoning of the Melo Property.

55. She also seeks relief to have the interference to her farm operations from the Melo Property eliminated. She states that if the practices on the Melo Property were in keeping with the zoning of this property and the by-laws of King Township, her farm practices which include her fish farm and equestrian income generating activities would not be ruined.

56. Finally, she seeks to have King Township enforce its by-laws including zoning stating that this is its duty. She alleges that King Township has not supported her farm practices by not enforcing the zoning or other by-laws with respect to the Melo Property and wants the Board to determine that the Melo Property must adhere to the zoning and the by-laws of King Township.

Submissions of King Township

57. Not unexpectedly, the submissions of King Township are very concise. The Township argues that the Board’s jurisdiction under the Act does not extend to enforcing a municipal by-law or directing a municipality to enforce a by-law in respect of any property.

The Board’s Section 6 Jurisdiction

58. It is clear from a simple reading of Section 6 of the Act that the purpose of the section is to provide a protection to farmers who are carrying on a normal farm practice in an agricultural operation from a municipal by-law that restricts the same. If the Board determines that the practice is a normal farm practice and that the by-law restricts that practice, the Board can order that the by-law does not apply to the farmer’s normal farm practice. The Act gives no other powers to the Board.

59. The applicant has misconceived the purpose and authority of section 6. The Board has no jurisdiction to enforce the noise by-law or the zoning by-law or to order the municipality to do so. It should be noted that the zoning by-law is not referenced in the application although referred to in the applicant’s submissions.

60. Furthermore, subsection 6(5) of the Act gives the Board the authority to refuse to hear an application if the main reason for bringing the application is other than to be able to carry on a normal farm practice. The Board finds that the section 6 application is for the purpose of having the Board enforce the noise by-law or to order the municipality to enforce the by-law and not for the purpose of permitting Kendall to carry on a normal farm practice.

Conclusion and Order

61. With respect to the Section 5 application, the Board finds that Kendall has not been able to establish that there is an agricultural operation on the Melo Lands which gives rise to the alleged disturbances. Unless the disturbances relate to an agricultural operation, they are matters which are outside of the Board’s jurisdiction. Accordingly for the reasons given above, the application is dismissed without a hearing pursuant to Rule 8(1)(e) of the Board’s Rules of Practice and Procedure.

62. In the alternative, the Board finds for the reasons given above that the section 5 application is vexatious and the application is dismissed without a hearing pursuant to Rule 8(1)(b) of the Board’s Rules of Practice and Procedure. In the further alternative, the Board refuses to hear the application pursuant to Section 8(1)(b) of the Act.

63. With respect to the Section 6 application, the Board finds for the reasons given above that the application relates to matters that are outside of the Board’s jurisdiction. Accordingly, the application is dismissed without a hearing pursuant to Rule 8(1)(e) of the Board’s Rules of Practice and Procedure.

64. In the alternative, the Board finds that the main reason for the application is other than for the applicant to be able to carry on a normal farm practice and the Board refuses to hear the application pursuant to subsection 6(5) of the Act.

65. With respect to both the section 5 and 6 applications, the Board finds that both applications are frivolous as it is plain and obvious that they cannot succeed¹⁰. In the alternative, both applications are dismissed pursuant to Rule 8(1)(b).

RELEASED: May 2, 2024

Footnotes

1. 1Kendall Application page 1 and Written Submissions of the Respondents, Jose and Maria Connie Melo (“Melo Submissions”) paragraph 8
2. 2Kendal Application page 2 and Melo Submissions paragraph 7
3. 3File CV-23-00004431-0000, Proceedings commenced at Newmarket
4. 4Farming and Food Production Protection Act 1998, S.O. 1998, c. 1, Subsection 5(4)(b)
5. 5Foy v. Foy (No. 2), 1979 CanLII 1631 (ONCA); Dale Streiman & Kurz v. De Teresi, 2007 CanLII 1902 (ONSC)
6. 6MDG Newmarket Inc. v. Symonds, 2022 ONSC 6481
7. 7Maynes v. Allen-Vanguard Technologies Inc., 2011 ONCA 125
8. 8Crook v. Adler, 2021 ONSC 7719
9. 9Rule 5, Board’s Rules of Practice and Procedure
10. 10Berendsen v Director of Regulatory Compliance, 2019 ONAFRAAT 13, Eigenbrood v. Director, 2021 ONAFRAAT 10