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

(Decision)

2025 ONNFPPB 04

DATE OF DECISION: 2025/11/14

STATUTE: Farming and Food Production Protection Act, 1998

HEARING: May 26 and 27, and September 22, 2025 by Zoom

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 (the “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:

Manuel Fagundes Applicant

– and –

City of Hamilton Respondent

Self-Represented

Brandon Blackmore

Heard: May 26 and 27, and September 22, 2025 by Zoom

Before: Glenn C. Walker, Chair; Rod De Wolde, Member and David Fawcett, Member

Parties Present:

Manuel Fagundes – Applicant

Jennifer Buyers - Enforcement Supervisor, Animal Services, City of Hamilton

Brandon Blackmore, Legal Counsel for the City of Hamilton

Witnesses:

Manuel Fagundes, Applicant

Henry Drong, Owner of 1988 Highway 5 West, Flamborough

Denise Harvey, Owner of 2116 5th Concession West, Flamborough

Jennifer Buyers, Enforcement Supervisor, City of Hamilton’s Animal Services

John Fitzgerald, Owner of 1727 Safari Road, Flamborough

Craig Wilson, Owner of 1781 Safari Road, Flamborough

Chris Carey, Owner of 1688 Safari Road, Flamborough

Melanie Much, Owner of 1537 Valens Road, Flamborough

Janet Dohner, Expert Witness

Christoph Wand, OMAFA – Expert Witness

DECISION

This application is brought by Manuel Fagundes (the “Applicant”) pursuant to Section 6 of the Act for relief from a provision of By-law 12-031 being a by-law for responsible animal ownership in the City of Hamilton (the “By-law”).

FACTUAL BACKGROUND

The facts are largely uncontradicted. If there are any discrepancies, they will be identified below.
The Applicant purchased a farm located at 1759 Safari Road, Flamborough, in the City of Hamilton (“City”) in 1986 for the purpose of cultivating crops and keeping livestock. The farm consists of approximately 160 acres. At the present time he is farming cattle, sheep and chickens and is cultivating alfalfa.
Valentina Fagundes, the wife of the Applicant, is a member of the Ontario Federation of Agriculture and the operation has a Farm Business Registration Number from AgriCorp in her name. The Applicant was given an opportunity to add Valentina as a party to the application but declined on the basis that she is in poor health. For the purposes of this hearing, the Board will assume that both Manuel and Valentina Fagundes operate the farm and are the owners of the Livestock Guardian Dogs (singular and plural “LGD”).
The farm is surrounded by bush including a large acreage of forested Crown Land across the road.
The issue that arises from the application concerns the Applicant’s cow-calf operation. The cows and their calves are kept in a twenty-acre cattle paddock or pasture (“pasture”) which is fenced with page wire and electric fence on the inside. There are typically 100 cows plus calves although at the present time there are only about 80 cows.
The Applicant uses LGD to protect his cows and calves from predation by coyotes. He also uses LGD to protect the sheep and chickens he raises on his farm.
The Applicant’s livestock is subject to predation from coyotes, and he has suffered losses because of this. The coyote pressure has increased since he bought the farm in 1986. The coyotes can enter the pasture at night by crawling underneath the page wire, killing new-born calves and sometimes the mother cow when the LGD are not present.
He has 7 LGD, 1 white Great Pyrenees and 6 German Shepherds. There are 4 white German Shepherds and 2 black and tan German Shepherds.
Two of the dogs have been trained as LGD and those dogs have been used to train the others. The dogs were trained to chase the coyotes or other predators off of and away from the farm property.
The Applicant’s LGD are not licensed as required by the By-law. He objects to having to get licenses as the dogs are needed as LGD.
The Applicant has tried GPS fencing but that has not worked for him as the dogs would leave his property once the batteries in their collars died. He has not tried electronic or invisible fencing.
According to the Applicant the LGD do not leave his property unless they are chasing predators. Once they leave the property they usually remain away for two to three hours. When some leave to chase coyotes, some remain on the property to protect the livestock.
Melanie Much has resided at 1537 Valens Road, Flamborough, since December 2023. She owns a one-acre residential lot which is unfenced. She resides there with her husband and 2-year-old son. Her property is approximately 1 kilometer from the Applicant’s farm as the crow flies.
On more than twenty occasions she has observed a pack of dogs roaming in the vicinity of her property, typically in the late morning or early afternoon. Included in the pack are 3 or 4 white German Shepherds and sometimes a black and tan German Shepherd. She produced numerous photographs showing white German Shepherds and sometimes a black and tan German Shepherd roaming in the field behind her house or nearby on various dates.
Ms. Much forwarded Statements of By-law Infraction, together with supporting videos and photographs, to the City’s by-law enforcement office to complain about the dogs running at large. After making enquiries and speaking to the animal control officer she determined that the dogs in question were owned by the Applicant.
John Fitzgerald has resided at 1727 Safari Road, Flamborough, for a little over twenty years. 1759 Safari Road, owned by the Applicant, is directly beside his property to the west.
Mr. Fitzgerald has observed some of the Applicant’s dogs on his property. On one occasion he observed 3 white dogs and a black and tan dog chasing a white-tailed deer on his property. On another occasion he saw a white dog take a chicken on his property and take off in a northerly direction. He never saw them chasing a coyote and according to him they were “just kind of sun-tanning, having a good time”.
He knows that the dogs he has observed are the Applicant’s dogs. They are the only white German Shepherds in the area.
Chris Carey has resided at 1688 Safari Road, Flamborough, since 2013. Her property is across the road and just southeast of the Fagundes property. She has seen 3 white German Shepherds on her property on occasion and once her sons returned them to the Applicant.
Craig Wilson has resided at 1781 Safari Road, Flamborough, for approximately twelve years. His property is immediately west of the Applicant’s farm.
On twelve or more occasions he has observed a pack of white German Shepherds and a black and tan German Shepherd relaxing on his back deck and pawing at his door. He has also seen them on a trail camera on his property as well as other places on his lot and in the vicinity away from the Applicant’s farm. On one occasion he observed the white Great Pyrenees dog on his property.
He believes that all these dogs belong to the Applicant. Once he saw the dogs going home by going up the Fagundes’ driveway.
All neighbours who testified had concerns about the roaming packs of dogs and the safety of their children, grandchildren and the dogs and livestock on their own property.
Between November 11, 2020 and May 2, 2025, the City issued approximately thirty-five administrative penalties or tickets to the Applicant for permitting a dog to run at large and failing to license a dog for non-compliance with sections 7.3 and 4.1 of the By-law. There was a separate penalty issued for each dog found to be running at large or to be unlicensed on each particular date.
During this period the total of penalties, late fees and tax amounted to $5,484.12. The Applicant has not appealed any of these administrative penalties although there is an appeal process. If the penalties remain unpaid, they are added to the owner’s tax roll.
The annual licensing fee is approximately $84 per dog for an unaltered animal and 50% of that for an altered dog.

The By-law

At this point it would be appropriate to summarize the pertinent portions of the By-law.
The By-law does not have any definition of or exemptions for LGD.
Part 4.0 deals with the licensing of dogs and provides that no person shall own a dog without a current, valid licence for the dog. The application for a licence must identify the dog, where it will be kept and provide details of the dog’s most recent rabies vaccination.
Part 7.0 deals with the prohibition of dogs at large. Subsection 7.3 provides that no owner of a dog shall permit that dog to be at large, except when the dog is on premises owned or occupied by the owner or on premises owned or occupied by a person who has given prior consent.
Subsection 7.6 provides that no owner shall permit a dog to be outdoors on premises as described in subsection 7.3 except where the dog is contained in an enclosure or fenced area, including an area enclosed by electronic fencing known as invisible fencing, restrained by a chain or under the control of some person sufficient to prevent the dog from leaving the premises.
Despite subsection 7.6, subsection 7.7 provides that a dog may be outdoors on rural or agricultural property if the dog is sufficiently trained so as to remain on the premises.
Part 1.0 contains definitions for terms used in the By-law and includes:

“at large” means not on a leash and under the control of some person;

“farm” means an agricultural operation as defined in the Farming and Food Production Protection Act, 1998 and includes such an operation that is not carried on with the expectation of gain or reward but otherwise meets the definition of the Act.

“premises” means a building or part of a building and any land appurtenant to the building or part of the building and includes a vacant lot; and

“rural or agricultural premises” means premises located in a rural or an agricultural zone permitted under the City’s zoning bylaws; premises located in a Rural Settlement Area as shown on Map A to Map S at Appendix 1 that are 0.2 hectare (.5 acre) or more in area; or a farm.

Evidence Relating to the Issue of Normal Farm Practice

There are two ways for an Applicant to provide evidence of normal farm practice. One is to lead evidence from another farmer who has personal experience to show that the practice in question is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances. The other way is to provide the Board with expert opinion evidence of the same nature.
The Applicant called two witnesses who gave personal experience evidence.
Henry Drong testified that he has farmed all his life. He has 2 one-hundred-acre farms across the road from each other at 1988 Highway 5 West, Flamborough, about three concessions away from the Applicant’s farm. Presently he has a cow-calf operation of approximately forty head, which he operates on an eight-acre pasture on the one farm. He also has free-range laying hens. He noted the high coyote pressure in the area. He uses 2 Great Pyrenees as LGD to protect his livestock.
His LGD will leave his property to chase predators but not very often. Usually, one will go and one will stay. They are trained to stay home. They know that they are not to leave and know their property lines.
Denise Harvey has farmed for more than forty years. She owns fifty acres at 2116 5th Concession West, Flamborough. She raises cattle and pigs. She also noted the high coyote pressure in the area. She uses 1 Great Pyrenees dog as an LGD to protect her livestock from the coyotes. The dog barks a lot at night when the coyotes come but she was not able to say whether the LGD leaves her property as this happens at night. However, her dog usually stays with the herd and would not leave her property for extended periods of time.
At the end of the evidence from the parties, since they had not presented any expert evidence on the issue of LGD, the Board determined that it wished to obtain expert evidence in this regard. Subsection 8(3) of the Act provides that the Board may appoint one or more persons having technical or special knowledge of any matter before the Board to assist it in any capacity in respect of that matter.
The hearing was then adjourned without a date. The parties were advised that the Board would retain an expert to give expert opinion evidence with respect to the use of LGD, The Board’s expert would prepare a short report which would then be shared with the parties, who would be able to retain and call their own expert witnesses in response. A video recording of the evidence to date would be made available to any proposed expert upon request.

Christoph Wand

Upon the continuation of the hearing on September 22, 2025, the Board called Christoph Wand as its proposed expert witness. Mr. Wand is an employee of the Ontario Ministry of Agriculture, Food and Agribusiness (“OMAFA”) where he has authored over one hundred fact sheets, symposia proceedings, media articles and info sheets. He co-authored an OMAFA Factsheet entitled “Livestock Guardian Dogs Care” in 2022. He provided a curriculum vitae and Acknowledgement of Expert’s Duty. Mr. Wand was qualified by the Board to give expert opinion evidence concerning LGD.
The Board provided the witness with three questions which are set out below together with the witness’s responses.
Question 1. In your opinion, is it a normal farm practice to use Livestock Guardian Dogs to protect a cow-calf operation from predation by coyotes? Answer: Yes.
Question 2. If so, in your opinion, is it appropriate to use German Shepherd dogs as LGD? Answer: No.
Question 3. If so, in your opinion is it normal farm practice to allow LGD to leave the farm for an extensive period of time, for example, not to return immediately after chasing coyotes from the farm property? Answer: No.
With respect to Question 2, he expanded his answer to state that there are problems using herding breed dogs, such as the German Shepherds, as LGD as opposed to the use of dogs from a recognized LGD breed. The German Shepherd is not a LGD breed. Herding breed dogs and even those who have part herding dog heritage will have a prey drive instinct which encourages them to pursue prey. LGD are bred not to have any prey drive instinct while still protecting the herd or flock.
Concerning Question 3, the witness believes that owners of all livestock, including LGD, have a duty to contain the animals on their own property. He referenced Section 2 of the Protection of Livestock and Poultry Act, R.S.O. 1990, c. L.24 which provides that any person may kill a dog that is found killing or injuring livestock or poultry or that is found straying at any time, not under proper control, upon premises where livestock or poultry are habitually kept. Based on this reasoning, it would not be a normal farm practice to allow LGD to stray off their farm property.

Janet Dohner

Janet Dohner was called as a proposed expert witness by the City. She provided a written report with a curriculum vitae and an Acknowledgement of Expert’s Duty. Ms. Dohner has more than 40 years of hands-on experience with the use of LDG for predator control. She has published books and authored over one hundred articles relating to protection of livestock from predation. She has also made presentations on the use of LGD, Farm Dogs and Predator Coexistence. Ms. Dohner was qualified to give expert opinion evidence relating to LGD.
Ms. Dohner’s opinion was that it is a normal farm practice to use LGD to protect a cow-calf operation from predation by coyotes. She based her opinion on her extensive experience and quoted statistics.
She opined that the German Shepherd is not appropriate to use as a LGD as it is a herding breed with an instinctive drive to control livestock as well as higher levels of energy and prey drive than an LGD. It is a herding breed and not a recognized LGD breed.
LGD are a specific group of dog breeds developed over two millennia by peoples who cared for sheep, goats or cattle. She listed in her report approximately 19 breeds of accepted LGD breeds including Great Pyrenees and Maremma Sheepdogs.
In her opinion, the use of 7 LGD to protect a cow-calf operation of approximately eighty cows on a twenty-acre pasture was overkill as 2 LGD could easily protect this space and number of cattle. The presence of close neighbours and poor fencing that does not contain the dogs are both contra-indications for increasing the number of dogs. Small grazing areas are also notorious for overly confining multiple dogs leading to boredom, escaping and roaming.
It is not a normal or desirable farm practice for LGD to be away from their stock for extended periods of time. To be effective the LGD must stay with their livestock. If the LGD is not at home with his stock, he is leaving them vulnerable to attacks by predators and not doing his job.
It is not a normal farm practice to allow LGD to leave the farm property for any length of time for the purpose of chasing away predators. Chasing predators beyond fencing would be a liability and a public nuisance, reflecting poorly on the livestock producer. It is not a normal or desirable farm practice to allow LGD to roam off the owner’s property. It is unacceptable for a LGD to go beyond the boundary of the farm property.
There are risks associated with allowing LGD to leave or roam beyond the boundary of the farm property. There is possible personal liability to the farmer for injuries to people, pets or livestock and increased likelihood of death or injury to the LGD.
Ms. Dohner is located in the state of Michigan; however, she stated that her personal experience would apply equally to southern Ontario.

Martin Jenkins

The Applicant proposed to have Mr. Jenkins qualified as an expert witness concerning LGD. Mr. Jenkins did provide an Acknowledgement of Expert’s Duty and a written report but did not provide a written curriculum vitae as required by Rule 27.01. Over the objection of counsel for the City, Mr. Jenkins was permitted to give sworn testimony as to his qualifications.
Mr. Jenkins described himself as a canine behaviourist familiar with the subject matter of working dogs.
The proposed witness failed to demonstrate any particular expert knowledge with respect to LGD and after lengthy cross-examination by counsel for the City, the Board declined to qualify him as an expert witness with expertise in LGD and indicated that written reasons would be given later. In considering the qualifications of the witness the Board took into consideration his report which, however, was not accepted as evidence.
The Board applied the 4 criteria found in R. v. Mohan¹ They are:

a. Relevance

b. Necessity in assisting the trier-of-fact

c. The absence of any exclusionary rule

d. A properly qualified expert.

We will consider each of the Mohan requirements in turn.

Relevance

In Dulong v. Merrill Lynch Canada Inc.,² Justice Ducharme stated the following on the issue of relevance:

The determination of the relevance of the proposed expert evidence is to be decided by the trial judge as a question of law. As explained by Charron J.A., as she then was, in R. v. K. (A) (1999), 1999 CanLII 3793 (ON CA), 45 O.R. (3d) 641, O.J. No. 3280, 137 C.C.C. (3d) 225 (C.A.) at pp. 672-73 O.R., p. 261 C.C.C.:

It involves the determination of the logical relationship between the proposed evidence and a fact in issue in the trial. The logical relevance of the evidence is determined by asking the following questions:

(a) Does the proposed expert opinion evidence relate to a fact in issue in the trial?

(b) Is it so related to a fact in issue that it tends to prove it?

If the answer to both questions is yes, the logical relevance of the evidence has been established. This is the basic threshold requirement for admissibility of any evidence.

The issue in this hearing is the fact that the Appellant’s LGD are leaving the farm property and remaining at large for extended periods of time. Having reviewed the proposed opinion evidence in Mr. Jenkin’s report, the answer to these questions is yes. The proposed evidence is logically relevant.

Is the Proposed Evidence Necessary?

The proposed evidence is necessary to assist the trier-of-fact, the Tribunal. It contains an opinion related to the issue in this hearing that is whether the use of LGD who leave the farm property and remain away for extended periods is a normal farm practice.

Absence of Any Exclusionary Rule

Expert opinion evidence that would otherwise be admissible may still be excluded on the basis of another rule of evidence.³ There is no exclusionary rule applicable here.

Is Mr. Jenkins a Properly Qualified Expert?

As Charron J.A. observed in R. v. K. (A)⁴, opinion evidence can only be of assistance to the extent that the witness has acquired special knowledge over the subject matter that the average trier-of-fact does not already have. If the witness’s “special” or “peculiar” knowledge on a subject matter is minimal, he or she should not be qualified as an expert with respect to that subject.
We summarize the evidence of Mr. Jenkins on the issue of his qualifications.

a. In the U.S Military he was a military working dog handler

b. He worked as an explosives detection canine handler in the private sector

c. In 2024 he registered a business called Guardians Dog Training in the State of Virginia

d. The word “Guardians” in his business name has nothing to do with LGD but refers to his military history

e. The website for his business says nothing about experience working with LGD

f. He has no educational background in animal science or livestock management

g. He has not published any articles or books or made presentations relating to LGD

h. He styles himself as a dog behaviourist and dog trainer but does not appear to have any experience training LGD.

The Board finds that the proposed expert witness has no “special” or “peculiar” knowledge on the subject matter of LGD.
Since the Appellant has failed to establish that this proposed expert witness has met all 4 criteria in the Mohan test, the witness was not qualified to give expert opinion evidence.

Relevant Provisions of the Act.

This application is brought under Section 6 of the Act. The following subsections are applicable.

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

(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.

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

The purpose of the by-law that has the effect of restricting the farm practice.
The effect of the farm practice on abutting lands and neighbours.
Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement.
The specific circumstances pertaining to the site.

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

(a) the farm practice is a normal farm practice;

(b) the farm practice is not a normal farm practice; or

(c) 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.

“Agricultural Operation” is defined in the Act as an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward and includes the raising of livestock.
“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

The Issues

The following four issues were established at the Pre-Hearing Conference:

a. Does the Applicant operate an agricultural operation as defined in the Act?

b. What is the farm practice at issue?

c. Is the farm practice a normal farm practice as defined in the Act?

d. If so, does the By-law restrict the normal farm practice?

ANALYSIS AND DISCUSSION

Agricultural Operation

The Board is satisfied and finds that the Applicant has an agricultural operation as defined in the Act. He raises cattle and other livestock for the purpose of gain or reward which is demonstrated by his Farm Business Registration Number which requires that he have a gross farm income of at least $7,000.

Farm Practice

The Applicant believes that the farm practice at issue in this proceeding is the use of LGD to protect livestock from predation by coyotes. The Board disagrees. The farm practice at issue is more complex.
In the recent case of Canini v. Town of Grand Valley, 2025 ONNFPPB 1 at paragraph 28, the Board found that the farm practice at issue was defined by the circumstances present.
Based on the circumstances of this case, the farm practice is the use of LGD on a farm to protect livestock from predation where the LGD are permitted to leave the farm property and run at large for extended periods.