Normal Farm Practices Protection Board
Commission de protection des pratiques agricoles normales
1 Stone 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
Dunmatt Farm v North Glengarry (RE) (Decision and Order) 2025 ONNFPPB 02 2025/07/11 002Odermatt025 Farming and Food Production Protection Act, 1998
HEARING:
In writing
BETWEEN:
Josef Odermatt Applicant
– and –
Corporation of the Township of North Glengarry and North Glengarry BESS Inc. Respondents
Self-Represented
Self-Represented
IN THE MATTER OF the Farming and Food Production Protection Act, 1998.
AND IN THE MATTER OF applications to the Normal Farm Practices Protection Board (“Board”) under Section 5 of the Farming and Food Production Protection Act, 1998 (“Act”) for a determination as to whether disturbances are a result of a normal farm practice and under Section 6 of the Act for a determination that a municipal by-law restricts a normal farm practice.
AND IN THE MATTER OF a possible dismissal of the applications without a hearing pursuant to Rule 8(1) of the Board’s Rules of Practice and Procedure and Section 8(1) of the Act
BETWEEN:
Josef Odermatt Applicant
– and –
Corporation of the Township of North Glengarry and North Glengarry BESS Inc. Respondents
Before: Glenn C. Walker, Chair John Lohuis, Member David Fawcett, Member
Self-Represented
Self-Represented
Heard: In writing
DECISION AND ORDER
1The Board received an application from Josef Odermatt dated March 24, 2025, which purports to be under Sections 5 and 6 of the Act.
2On April 3, 2025, the Board issued a Notice of Possible Dismissal Without A Hearing (“Notice”) and served it upon the Applicant and the Respondents. The Board determined that North Glengarry BESS Inc. was an interested party and added it as a party respondent on its on motion.
3The Board advised the parties that it was considering dismissing both applications without a hearing pursuant to Rule 8(1) of the Board’s Rules of Practice and Procedure and/or Section 8(1) of the Act.
4Rule 8(1) of the Board’s Rules of Practice and Procedure 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 personal interest in the subject matter of the application; or
e. the proceeding relates to matters that are outside of the Board’s jurisdiction.
5Section 8(1) of the Act states 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.
6It is important to understand the contents of the 2 applications. I will set them out here as they appeared in the Notice.
7Under the heading “Nuisance Complaint (under Section 5 of the Farming and Food Production Protection Act)” on the application form, the applicant has added the statement “These are the issues with the Bess Facility”, and in addition to checking the alleged disturbances of noise, vibration and smoke, which are recognized disturbances under the Act, has added and checked additional alleged disturbances of toxic emissions, contamination of soil and ground water , damage to local infrastructure (roads) and electromagnetic field pollution, which are not recognized disturbances under the Act.
8Under the heading “Date(s) of the Disturbance (yyyy/mm/dd)” on the application form, the applicant states: “Pending Construction of the Battery Energy Storage System (BESS). However: February 25, 2025, North Glengarry BESS Inc. (the proponent) was granted an Energy Storage Licence from the Ontario Energy Board”.
9Under the heading “Describe how the disturbance has affected you” on the application form, the applicant states:
This BESS construction will affect agricultural practices in the area as well as all lands and properties.
We are submitting this Application for a Hearing under the Farming and Food Production Protection Act (FFPPA) regarding the proposed Battery Energy Storage System (BESS) near Dunvegan, Ontario. This project was approved without proper impact studies and without proper consultations with Local Farmers and Residents.
BESS facilities pose serious risks to normal farm practices, including livestock, health issues from Electromagnetic Fields, Noise, and Toxic Emissions from potential Fire hazards. The project also threatens Soil and Water Quality as hazardous battery runoff will contaminate farmland and groundwater. Additionally, heavy truck traffic will damage local infrastructure (roads, culverts etc.), increasing costs (higher municipal taxes etc.) to Local Farmers and Residents.
We request the NFPPB to repeal the By-Law Amendment Z-001-2025 and also request the proponent North Glengarry BESS Inc. to consider relocating their BESS Facility to Non-Agricultural Zoned Land. Farmers depend on these lands for food production and economic stability and this project threatens our Long-Term Viability and Local Food Sovereignty.
10The application goes on to refer to several news reports. Attached to the application are 13 pages of signatures which appear to be in support of the application.
11On the portion of the application form that provides for “By-law Complaint (under Section 6 of the Farming and Food Production Protection Act)” the applicant provided the By-law number and the date that it was passed. He also provided the contact information for the Corporation of the Township of North Glengarry, the Municipality that passed the By-law.
12When asked to state how the By-law was affecting his farming practices he stated: “No Insurance Coverage for Farmers and Landowners due to a BESS incident. Declining Property Value also See Above Disturbance Description”.
13The By-law in question is By-law Z-01-2025 being a By-law to amend Zoning By-law No. 39-2000. The By-law passed on February 24, 2025 amends the Zoning By-law to change the zoning for the lands proposed to be used for the BESS facility from General Agricultural to General Agricultural Special Exception 257 to add BESS as a permitted use.
14Subsection 8(2) of the Act provides that:
The Board will not dismiss an application under Rule 8(1) without notifying the applicant and, where the jurisdiction of the Board is at issue, all other parties, of the reasons for the possible dismissal and without providing the opportunity to make submissions within a stated timeframe.
15As required by this subsection, the Board provided the following reasons for possible dismissal in the Notice.
16Subsection 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”.
17It appears that this Section 5 application is not within the jurisdiction of this Board and that the applicant does not have a sufficient personal interest in the subject matter of the application for the following reasons:
a. The disturbances with which the Board has jurisdiction are defined in Subsection 1(1) of the Act and are limited to odour, dust, flies, light, smoke, noise and vibration. The Board has no jurisdiction to address disturbances of toxic emissions, contamination of soil and groundwater, damage to local infrastructure and electromagnetic field pollution.
b. The disturbances must result from an agricultural operation as defined in Section 1 of the Act. No agricultural operation has been identified as being carried on by North Glengarry BESS Inc.
c. The application does not address how the disturbances directly affect the applicant at the present time. The Board does not deal with how a disturbance might speculatively directly affect an applicant in the future.
18Subsection 6(1) of the Act provides that no municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.
19It appears that this Section 6 application is not within the jurisdiction of the Board for the following reasons:
a. The application fails to identify a normal farm practice carried on as part of an agricultural operation by the applicant.
b. The application fails to identify how the zoning by-law amendment is restricting a normal farm practice.
c. This Board does not have any jurisdiction to repeal, amend or quash a by-law.
20As required by Subsection 8(2) of the Act, the Board sought submissions from the parties. The Applicant was given until May 30, 2025 to file submissions and the Respondents until June 16, 2025.
21The unrepresented applicant was encouraged by the Board to seek legal advice in connection with this matter by way of a procedural order extending the timelines for filing submissions.
22In response to the request for submissions, the Township of North Glengarry filed a letter with the Board in which it stated that “The Township of North Glengarry agrees with and accepts the Board’s decision to dismiss the applications by Mr. Josef Odermatt without a hearing”. It provided no rationale for its decision.
23No submissions were received from North Glengarry BESS Inc.
24Submissions from the Applicant were brief and can be repeated here.
Here's a description of my Farming Operation:
a) 1600 acres
b) 400 livestock (Dairy Operation with the Dairy Farmers of Ontario )
c) I grow crop for my animals feed (corn silage, alfalfa, timothy)
d) I grow Cash crop: Corn, Soy, Wheat, Rye
e) Please take note, that this BESS Facility is in close proximity to my property, and directly upwind from my farm.
( I CAN SEE THE SITE FROM THE BACK OF MY BARN )
As well, I am very disappointed that I was NOT notified during the early consultation stage of this Project by our traditional community newspaper nor by any mail out.
Not only do I have a Farming Operation, but my whole Family is involved in the process.
As well, I am providing community support for area farmers.
As per my research, it was very alarming to find out how my farm operation will be affected by the BESS Project.
a) Local realtor has estimated from his studies that my whole property value drops by 15 to 20% upon completion of the Project
b) The noise this BESS Project will emanate would definitely affect my livestock as they are more sensitive to stimuli than humans.
c) The potential toxic leakage from battery gas buildup, the fire risk and associated toxic emissions ( hydrogen fluoride gas, smoke ) are just but a few potential impacts on my farming community.
In others words, in the event of a BESS fire, my farming operation would cease or would be drastically impacted as well as all other farming operation in this area. In regards to insurance, my policy will NOT cover such an event.
25The Applicant also submitted an aerial photograph of his farm and approximately 35 articles concerning the adverse effects of Battery Energy Storage Systems (BESS).
ANALYSIS
26With respect to the Section 5 application, the Board had concerns about its jurisdiction to hear this application and whether the Applicant had a sufficient personal interest in the subject matter of the application.
27The submissions of the Applicant do not address these concerns.
28The jurisdiction of this Board is grounded in the Act. It has no other powers.
29Section 5 allows the Board to provide relief with respect to 7 disturbances. It has no jurisdiction to deal with complaints of toxic emissions (unless they relate to odour), contamination of soil and groundwater, damage to local infrastructure and electromagnetic field pollution.
30The disturbances must result from an agricultural operation as defined in the Act. It appears that the BESS facility to be constructed by North Glengarry BESS Inc. will not be an agricultural operation. The applicant has submitted nothing that would contradict this.
31The Board only deals with disturbances that directly affect the Applicant at the present time. It does not deal with how a disturbance might speculatively affect the Applicant in the future.
32For these reasons, the Board dismisses the Section 5 application on the grounds that it has no jurisdiction to hear this application, and that the Applicant can have no personal interest in the subject matter of the application because the BESS facility has not yet been constructed. Therefore, the Applicant cannot have been directly affected by any disturbance.
33With respect to the Section 6 application, the Board accepts, based on the submissions of the Applicant and for the purposes of this decision only, that he operates an agricultural operation.
34However, he has failed to identify a normal farm practice that he carries on as part of that agricultural operation and how that normal farm practice is restricted by the zoning by-law amendment.
35The Ontario Divisional Court1 has found that farming (the growing of crops, the raising of livestock) is not a normal farm practice. A normal farm practice is a farming technique or method used in farming.
36What the Applicant really seeks from the Tribunal is for it to repeal, amend or quash the by-law.
37The Board has no such power. The Applicant has come to the wrong Tribunal for that relief.
38The numerous articles submitted by the Applicant are of no assistance to the Board and do not respond to the issues raised in the Notice.
39For these reasons the Section 6 application is dismissed.
Dated at Hamilton, Ontario this 11th day of July, 2025
If you are a participant in this proceeding and would like to request this document in French or that the proceedings take place in French, please contact the Board at 519-826-3433 or NFPPB@ontario.ca.
Si vous êtes un participant à cette procédure et voulez demander ce document en français ou que la procédure se déroule en français, veuillez contacter la commission au 519 826-3433 ou au NFPPB@ontario.ca.
If you have any questions with respect to this matter, please contact the Board at (519) 826-3433 or NFPPB@ontario.ca
Footnotes
- Oakville (Town) v. Read, 2010 ONSC 170, para. 51