Normal Farm Practices

Protection Board

Commission de protection des pratiques

agricoles normales

1Stone Road West

Guelph, Ontario N1G 4Y2

Tel: (519) 826-3433

Fax: (519) 826-4232

Email: NFPPB@ontario.ca

1 Stone Road West

Guelph (Ontario) N1G 4Y2

Tél.: (519) 826-3433

Téléc.: (519) 826-4232

Courriel: NFPPB@ontario.ca

CITATION:

DATE OF DECISION:

STATUTE:

Elena Canini and Cary Lyn and the Corporation of the Town of Grand Valley

(Decision)

2025 ONNFPPB 01

2025-04-02

005Canini24

Farming and Food Production Protection Act, 1998

HEARING:

March 20, 2025

BETWEEN:

Elena Canini and Cary Lyn

Applicants

– and –

The Corporation of the Town of Grand Valley

Respondent

Self-Represented

Self-Represented

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 (“Act”) for a determination as to whether a municipal by-law is restricting a normal farm practice.

AND IN THE MATTER OF a hearing held pursuant to Rule 7 of the Board’s Rules of Practice and Procedure.

BETWEEN:

Elena Canini and Cary Lyn

Applicants

– and –

The Corporation of the Town of Grand Valley

Respondent

Self-Represented

Self-Represented

Heard: March 20, 2025 via Zoom

Before: Glenn C. Walker, Chair; Robert Fuller, Member; and Rod de Wolde, Member

Parties Present:

Elena Canini - Applicant

Meghan Townsend - Clerk/CAO, The Corporation of the Town of Grand Valley

Anita O’Brien –On-Farm Program Lead, Ontario Sheep Farmers

Bradley Haines – By-law and Property Standards Enforcement Officer, The Corporation of the Town of Grand Valley

Patty Slack – AgapiK9 Incorporated

DECISION OF THE BOARD

1. The Applicants, Elena Canini and Cary Lyn, made an application to the Board pursuant to Section 6 of the Farming and Food Production Protection Act 1998. The application alleged that By-law 2014-46, as amended by By-law 2022-10, being a by-law to regulate and provide for the keeping, control and licensing of dogs within the Town of Grand Valley (hereinafter called the “By-law”) was restricting a normal farm practice on their farm.

2. A virtual hearing was held on March 20, 2025, at which time the Board received evidence from Ms. Canini and Anita O’Brien on behalf of the Applicants and from Bradly Haines and Patty Slack for the Respondent.

Preliminary Matter Re Pando Stepanis

3. Prior to opening statements, Ms. Canini raised an objection concerning the Municipality calling Pando Stepanis as an expert witness.

4. The Respondent was required by the Pre-Hearing Conference Order made by the Board on November 22, 2024, as amended by the order of January 13, 2025, to serve and file a witness list and the curriculum vitae and report of any proposed expert witness on or before March 3, 2025. The curriculum vitae of Mr. Stepanis, who was proposed by the Respondent as an expert witness, was served and filed by email on March 19, 2025, the day before the hearing. No updated witness list was provided.

5. After hearing submissions from the parties and after due consideration by the panel, the Board decided that the Board would not hear from Mr. Stepanis as this would be procedurally unfair to the Applicants. The Applicants would have less than 24 hours to prepare for the testimony of Mr. Stepanis and consider calling a reply witness. The Board considered the fact that the Applicants are unrepresented and that the proposed expert had extensive experience and credentials.

Factual Background and Findings

6. There was little or no discrepancy in the evidence received. The following are the factual findings of the Board.

7. Elena Canini and her partner Cary Lyn maintain a farm operation on their 55 acre property located at 362169 Concession Road 8-9, Grand Valley, Ontario in the County of Dufferin. Three sides of the property border large, wooded acreage with the fourth side bordered by a corn field. The neighbouring acreage provides habitat for wildlife such as coyotes, foxes and minks.

8. A dwelling house, garage, storage shed, and a bank barn are located on the property. The balance of the property is pasture. Aside from one house across from the property there are no other residences nearby.

9. The Applicants raise sheep, egg chickens and meat chickens on the farm and turkeys seasonally. At the present time there are about 120 sheep including lambs and approximately 250 to 275 chickens. During the fall season there are about 30 to 35 turkeys. They are all free range.

10. The Applicants have a Farm Business Registration Number from the Ministry, but at the present time are not a member of an accredited farm organization as they are in the AgriCorp start up program.

11. In order to control predation by coyotes, foxes and minks, among others, the Applicants employ 2 Livestock Guardian Dogs (“LGD”). The LGDs are an important part of their enterprise. Both of these dogs belong to the Maremma Sheepdog breed, a breed recognized as LGDs.

12. The older male dog is named Luigi. He is about 4 years old. The other dog is a female called Lilly. She is about 1 and one-half years old. These dogs were trained by Ms. Canini from young dogs as LGDs. They are independent thinkers. They are raised living with the sheep and fowl (collectively called the “flock”), 24/7 and develop a strong bond with the flock. It takes about a year and one-half to 2 years of training by the owner to fully train a LGD. Luigi is fully trained, and Lilly is still in training.

13. Ms. Canini stressed that these dogs are not pets and live with the flock 24/7, 365 days of the year.

14. The Applicants’ LGDs are perimeter trained by using an electric dog fence and collar and Ms. Canini has not experienced either of them leaving the Applicants’ property.

15. On or about August 3, 2024, Ms. Canini’s brother and his two children were visiting and staying at the farm Property. After finishing chores, it was getting dark and Ms. Canini, her husband, her two children and her brother and his two children were in the house. She and her daughter were preparing a late dinner.

16. The flock, accompanied by the two LGDs, had been placed in the barn for the night as a precaution. The barn has no lighting. It was dark outside. The barn is located within a fenced field, and it would be necessary to open a farm gate and enter the fenced field in order to access the barn. Her niece and nephew had been warned about the dogs and told not to go to the barn.

17. Upon hearing screams, Ms. Canini rushed outside to find that her niece, Catarina, who was approximately 9 years of age at the time, had been bitten on the face. She also found Luigi outside. The only way that he could have gotten outside was if someone had opened the barn door. Catarina was taken to the hospital where she needed approximately 30 stitches on her face and in her mouth.

18. This tragic dog biting incident (“incident”) was reported to AgapiK9 Incorporated (“AgapiK9”), who is contracted with the Town of Grand Valley to provide dog related services. Patty Slack of AgapiK9 in consultation with Pando Stepanis decided that, because of the seriousness of the attack, Luigi should be designated as a Dangerous Dog under Section 5 of the By-law.

19. Bradley Haines, a By-law Enforcement Office for the Town of Grand Valley, was instructed to issue and serve on Ms. Canini a Declaration Regarding a Dangerous Dog naming Luigi. This document ordered that the Applicants comply with the following requirements. These requirements, among others, are contained in Section 5 of the By-law.

20. Subsection 5.1 - To keep the Dangerous Dog, when it is on the lands and premises of the owner, confined: a) Within the owner’s dwelling and under the effective control of an adult; or b) In an enclosed pen constructed with an enclosed top and sides, and a secure bottom effectively attached to the side/sides and embedded in the ground to a minimum depth of 30 centimetres or as otherwise approved by the Animal Control Officer. The pen shall provide humane shelter for the Dangerous Dog, while preventing it from escaping therefrom, and preventing the entry therein of unsupervised children.

21. Subsection 5.2 - To keep the Dangerous Dog under the effective control of an adult person and under leash, such leash to be approved by the Animal Control Officer and not to exceed 1.8 metres in length, at all times when it is not confined in accordance with 5.1.

22. Subsection 5.3 - To securely attach a muzzle to the Dangerous Dog at all times when it is not confined in accordance with 5.1.

23. Subsection 5.5 - To provide the Animal Control Officer with the new address and telephone number of the owner withing two (2) working days of moving the Dangerous Dog

24. Subsection 5.6 - To provide the Animal Control Officer with the name, address and telephone number of the new owner within two (2) working days of selling or giving away the Dangerous Dog.

25. Subsection 5.8 - To advise the Animal Control Officer forthwith if the Dangerous Dog is running at large or has bitten or attacked any person or animal.

26. Other: As per Council Resolution 2024-08-16, the “Dangerous Designation” and conditions listed above can be lifted if the Town receives a report from a reputable dog behaviouralist advising that the designation can be lifted.

27. Ms. Canini appealed the Dangerous Dog Designation (“DDD”) to the Appeal Committee pursuant to Section 10 of the By-law. On August 13, 2024, the Appeal Committee, after a hearing, made a recommendation to Council that the DDD be confirmed with the modification that the designation and conditions can be lifted if the Town receives a report from a reputable dog behaviouralist advising that the designation can be lifted.

28. Ms. Canini testified that she has complied with all the requirements. Luigi is confined in the barn as he is a working dog, not a pet, and does not belong in a house. The requirements under the DDD have resulted in Luigi not being able to carry out his LGD duties. She has sought out “reputable dog behaviouralists” but none are willing to provide a report to the Town due to alleged concerns about their liability.

29. The Applicants have suffered loss of livestock since Luigi has been unable to work. Lilly is not fully trained and Luigi who was assisting with her training is not present in the field. 2 LGDs are required with the size of the flock. The cost to replace Luigi with a trained LGD would be upwards of $5,000. However, it is unlikely that any breeder would part with a fully trained adult LGD.

Applicable Law

23. In the Act, normal farm practice means a practice that,

(a) Is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances, or

(b) Makes use of innovative technology in a manner consistent with proper advanced farm management practices.

24. The applicable provisions of Section 6 of the Act are as follows:

25. Subsection 6(1)

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

2. Subsection 6(15)

In determining whether a practice is a normal farm practice, the Board shall consider the following factors:

1. The purpose of the by-law that has the effect of restricting the farm practice.

2. The effect of the farm practice on abutting lands and neighbours.

3. Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement.

4. The specific circumstances pertaining to the site.

5. Subsection 6(16)

After the Board has completed the hearing, it shall provide a written decision stating whether the Board is of the opinion that,

1. The farm practice is a normal farm practice;

2. The farm practice is not a normal farm practice; or

3. The farm practice will be a normal farm practice if the farmer makes specific modifications in the practice within the time set out in the decision.

The Issues

25. The issues determined at the first Pre-Hearing Conference are as follows:

26. Do the Applicants operate an agricultural operation as defined in the Act.

27. What is the farm practice at issue.

28. Is the farm practice a normal farm practice as defined in the Act.

29. If so, does the by-law restrict the normal farm practice.

Analysis

Agricultural Operation

26. The Board finds that the Applicants do operate an agricultural operation as defined in the Act.

27. The evidence supports a finding that the sheep and fowl operation of the Applicants falls within the definition of agricultural operation found in Subsection 1(1) of the Act. It complies with Subsection 1(2)(b)(i) (livestock raising) and is carried on with the expectation of gain or reward.

The Farm Practice

28. The farm practice at issue is defined by the circumstances present here. It is not merely the use of LGDs to control predation in a sheep/fowl operation, but the use of a LGD with a DDD to control predation in a sheep/fowl operation.

Normal Farm Practice

29. The evidence of the expert witness Anita O’Brien was extremely helpful in establishing that the use of LGDs in managing predation in a sheep operation is in fact a normal farm practice. It is clear from the evidence of Ms. Canini and Ms. O’Brien that Applicants use of LGDs is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations.

30. The Board must now consider whether a LGD with a DDD can be a normal farm practice. The Board has found for many years that the over-arching principle in each case is that the consideration of normal farm practice is site specific. What is a normal farm practice in one situation may not be in another. This is further confirmed in Subsection 6(15)(4) of the Act.

31. The Board finds that the use of Luigi as a LGD on the farm of the Applicants despite the DDD is a normal farm practice. In making this finding the Board considered the following.

Subsection 6(15)(1)

Purpose of By-law

32. The stated purpose of the By-law is to regulate and provide for the keeping, control and licensing of dogs within the Town of Grand Valley.

33. More particularly, Section 5 and the definition of Dangerous Dog in the By-law have been included for the protection of the public and other domestic animals.

Subsection 6(15)(2)

Effect of Practice on Abutting Lands and Neighbours

34. The Board finds that the practice of using a LGD with a DDD in these circumstances will not have any appreciable effect on abutting lands and neighbours.

35. There is one house directly across the road from the Applicants and no other nearby neighbours.

36. Luigi is perimeter trained and there is no evidence that he has ever left the Applicants’ property.

37. All owners of land that are within 120 metres of the area in which the farm practice is being exercised were notified of the hearing pursuant to Subsection 6(9) of the Act. The Board inquired at the commencement of the hearing if any non-party wished to make submissions pursuant to Board Rules 52 and 53. No one appeared. There therefore does not appear to be any concern raised by the neighbours on abutting lands.

Subsection 6(15)(3)

By-law Reflects a Provincial Interest

38. The Board was not referred to any Provincial Policy Statement which would be relevant to this By-law.

39. The Respondent referred the Board to the Dog Owners’ Liability Act, R.S.O. 1990 Chapter D.16. This statute relates to the liability of the owner of a dog for damages resulting from a bite or attack by the dog on another person or domestic animal. Ms. Canini does not deny that she is liable for Luigi’s behaviour.

40. Section 4 of this statute provides for a proceeding in the Ontario Court of Justice. In such a proceeding the court may take into consideration, inter alia, the dog’s past and present temperament and behaviour, the seriousness of the injuries caused by the biting or attack, unusual contributing circumstances tending to justify the dog’s action, the improbability that a similar attack will be repeated, the dog’s physical potential for inflicting harm, precautions taken by the owner to preclude similar attacks in the future and any other circumstances that the court considers to be relevant.

41. If the court finds that the dog has bitten or attacked a person, the court may order that the dog be destroyed or order measures for more effective control. Some of these measures such as confinement, leashing and muzzle, are similar to the measures in Section 5 of the By-law.

42. Section 5.1 of this statute is of relevance. It reads as follows:

The owner of a dog shall exercise reasonable precautions to prevent it from,

(a) Biting or attacking a person or domestic animal; or

(b) Behaving in a manner that poses a menace to the safety of persons or domestic animals.

43. No proceedings under the Dog Owners’ Liability Act have been commenced as a result of the biting incident. The Board finds that Ms. Canini did exercise reasonable precautions in the circumstances to prevent the attack by confining the LGDs to the barn on the evening of the incident and warning her nephew and niece not to go to the barn.

Subsection 6(15)(4)

Specific Circumstances of Site

44. In making its decision, the Board has considered the following specific circumstances of this site and the agricultural operation:

i. The Applicants employ LGDs to provide protection for their flock from predation by coyotes, foxes, minks and other predators.

ii. Luigi, one of the LGDs, is fully trained as a LGD and would normally be with the flock 24/7 and 365 days of the year.

iii. Luigi is perimeter trained and an electronic fence and collar are employed. There is no evidence that Luigi has ever left the boundaries of the farm.

iv. With the exception of the incident which resulted in his DDD, there is no evidence that he has bitten any other person.

Other Considerations and Findings

The DDD

45. The incident involving Ms. Canini’s niece, Catarina, resulted in Luigi being designated as a dangerous dog pursuant to Section 5 of the By-law.

46. The By-law defines a LGD as a dog which is actively guarding farm animals, such as cattle or sheep, and such dog is under the control of its owner, who shall be a registered member of Ontario Federation of Agriculture or Christian Farmers Federation of Ontario. This is a rather restrictive group considering that there is another accredited farm organization (National Farmers’ Union) and, like the Applicants, the owner may be involved in AgriCorp’s start up program.

47. Subsection 2.2 of the By-law states that a LGD is exempt from the running at large provisions of the By-law providing that it is actively engaged in the performance of its trained duties. There are no other exceptions for LGDs, although there is no fee for their annual registration.

48. A dangerous dog is defined in Subsection 1.5 of the By-law as meaning a dog that in the absence of any mitigating factor has attacked, bitten or caused injury to a person.

49. In part, 2 of the mitigating factors are that the dog was, at the time of the aggressive behaviour, acting in defense to an attack by a person or domestic animal, and that the dog was, at the time of the aggressive behaviour, acting in defense of its young or to a person or domestic animal trespassing on the property of its owner.

50. There is no mitigating factor that provides for a dog, at the time of the aggressive behaviour, being actively engaged in protecting domestic animals with which it has been entrusted.

51. Ms. Slack and Mr. Stepanis on behalf of AgapiK9 made the decision to designate Luigi as a dangerous dog. Ms. Slack testified that that decision was based on the seriousness of the attack citing the “high level” of the attack, the location of the bite and the number of stitches required.

52. She also stated that they took into consideration that Luigi was a LGD, although her evidence concerning her knowledge of the nature and temperament of a LGD, compared to the evidence of Ms. O’Brien was not convincing. However, it appears that the major concern was the aggressiveness of the attack.

53. Ms. O’Brien has decades of experience working with LGDs, both as a sheep farmer, a former expert on sheep and goat husbandry with the Ministry of Agriculture, Food and Agribusiness and presently the On-Farm Program Lead with Ontario Sheep Farmers.

54. There is no evidence that AgapiK9 undertook an investigation of any depth into the circumstances surrounding the incident.

55. Ms. Canini appealed the DDD to the municipality’s Appeal Committee. It is not surprising that the committee recommended to council that the decision be upheld as the mitigation factors do not address aggressive behaviour by a LGD engaged in protecting the domestic animals with which it has been entrusted.

56. This application is not an appeal of the Appeal Committee’s decision. The Board made it clear to Ms. Canini at the first Pre-Hearing Conference that the Board has no jurisdiction to overrule the DDD.

57. The Board does have jurisdiction however to decide that a certain farm practice is a normal farm practice in these circumstances and that the By-law restricts that normal farm practice so that those restrictive provisions do not apply to the Applicants.

Finding of Normal Farm Practice.

58. The Board finds that the use of a LGD with a DDD is a normal farm practice in these circumstances.

59. This finding is based on the following considerations and findings:

60. Luigi is a fully trained LGD and there is no evidence that he has bitten another person before or after the incident.

61. Luigi is perimeter trained and there is no evidence that he has ever left the Applicants’ property.

62. The present conditions which flow from Luigi’s DDD are such that Luigi cannot perform the duties of a LGD with the Applicants’ flock.

63. The Applicants have suffered the loss of livestock since Luigi has been unable to carry out his LGD duties.

64. It is unlikely that the Applicants will be able to acquire a fully trained LGD to replace Luigi, and the training of a pup will take time. Lilly, who is not fully trained, and a pup in training will not be able to fully protect the flock for several years resulting in further livestock loss to the Applicants.

65. The Board accepts the evidence of Ms. Canini that she has made three attempts to find a reputable dog behaviouralist who will provide a letter advising that the DDD can be lifted and that all have declined on the basis of exposing themselves to personal liability. Any further attempts will likely have the same result.

66. There is a very small possibility that the incident which gave rise to the DDD will happen again.

67. The Board has considered the seriousness of the injuries caused to Catarina by Luigi. This was a serious and tragic incident but there are other issues for the Board to consider with respect to the issues before it.

68. There are contributing circumstances to justify the dog’s actions. Luigi was engaged in carrying out his duty to protect the flock in the barn that night. It was dark in the barn and dark outside. Catarina was warned by Ms. Canini not to go to the barn. She was supposed to be in the house. She left the house and went to the barn.

69. We don’t know what happened next, but we can assume that Catarina opened the barn door. We can also assume that in the process of protecting the flock Luigi bit Catarina.

70. There is no evidence how many times he bit her. Ms. Slack used the term that the child was “mauled” by the dog. That is simply hyperbole without any further evidence. It is conceivable that a dog the size of Luigi (Ms. Canini estimated he weighed about 55 pounds and was about 2 feet at the shoulder) biting a 9 year old child could cause that much damage with one bite.

71. Ms. O’Brien testified that LGDs are fearful and do not trust people with whom they are not familiar. Luigi was not familiar with Catarina and was likely scared by her opening the barn door and possibly entering the barn.

72. Ms. O’Brien, the LGD expert, further opined that LGDs are not a danger to the public.

73. For these reasons, we find that Luigi was carrying out his duties as a LGD when the incident occurred and that it is highly improbable that a similar attack will be repeated.

74. The Board also finds that Ms. Canini took reasonable precautions to prevent the attack and that she will continue to take similar precautions in the future.

Does the By-law Restrict the Normal Farm Practice

62. Certain portions of the By-law do restrict Luigi from carrying out his duties as a LGD.

63. Subsection 5.1 of the By-law requires the owner of a dangerous dog to keep the dog either in a dwelling or in a pen. This requirement restricts the use of Luigi as a LGD and therefore restricts the normal farm practice as defined herein.

64. Subsection 5.2 of the By-law requires the owner of a dangerous dog to keep the dog under leash when not confined. This requirement restricts the use of Luigi as a LGD and therefore restricts the normal farm practice as defined herein.

65. Subsection 5.3 of the By-law requires the owner to attach a muzzle to the dangerous dog when not confined. This requirement restricts the use of Luigi as a LGD and therefore restricts the normal farm practice as defined herein.

Conclusion and Order

66. Subsections 5.1, 5.2 and 5.3 of By-law 2014-46, as amended, do not apply and never have applied since the incident on August 3, 2024, to the Applicants with respect only to the use of the dog Luigi when actively engaged as a LGD on their property.

67. If Luigi is removed from the Applicants’ property for any reason, he must be leashed and muzzled.

68. To be clear, in the Board’s opinion this decision acts as a full defense to any prosecution of the Applicants under Section 15 of the By-law relating to subsections 5.1, 5.2 and or 5.3.

69. For further clarification, Subsections 5.5, 5.6 and 5.8 of the By-law still apply to the Applicants and the DDD still applies to Luigi. However, where Luigi bites or kills a predatory animal attacking the flock while actively engaged in his LGD duties, it is not necessary to report this incident to the Animal Control Officer.

70. This decision and order apply only to the LGD Luigi and is conditional on no further human biting incidents occurring.