The Rural Voice, 2002-01, Page 41protection
operation and the occupancy of
those who complain of the
disturbance it creates is one of the
relevant contextual, site-specific
circumstances to be considered.
It is clear from this decision that
farm operations producing odours
and other disturbances will not
necessarily achieve statutory
protection from liability simply by
reflecting industry standards and
using available reduction technology
in their operations. In considering the
issue of "normal farm practice", the
courts and the Farm Practices
Protection Board are required to
undertake a qualitative or evaluative
assessment of the practice in issue
with respect to the extent of the
disturbance and the context in which
it occurs, including the relative
timing of the establishment of the
farm operation and the occupancy of
those complaining of the disturbance
it creates.0
Agrilaw is a syndicated column
produced by the full service London
law firm of Cohen Highley LLP. Paul
G. Vogel, a partner in the firm,
practices in the area of commercial
litigation and environmental law.
Agrilaw is intended to provide
information to farm operators on
topics of interest and importance.
The opinions expressed are not
intended as legal advice. Before
acting on any information contained
in this column, readers should obtain
legal advice with respect to their own
particular circumstances and
geographical area.
1
Neighbour
By Paul Vogel
The Farming and Food Production
Protection Act protects farmers from
liability in nuisance for agricultural
operations carried on as "a normal
farm practice". However, the Ontario
Court of Appeal has recently held
that what constitutes a "normal farm
practice" depends upon a
consideration of many factors and
that, depending upon the context, the
same farm practice may or may not
qualify for protection as "normal".
The case before the Court
concerned a mushroom farming
operation sued by neighbouring
property owners for nuisance
resulting from odours caused by the
composting process used to produce
substrate to feed the mushrooms.
Even though the composting process
was consistent with that used in the
industry and the producers had used
all available technology to reduce
odours, the trial judge held the
producer liable in nuisance and
awarded damages to the neighbouring
property -owners for the mental
distress, health problems, interference
with use and enjoyment of their
properties and decrease in property
values which they have experienced.
In upholding the trial judge's
decision and dismissing the
mushroom producer's appeal, the
Court of Appeal accepted the trial
judge's findings that the odours were
regular and persistent, significantly
affected the physical well-being of
the plaintiffs and substantially
disrupted their use of their lands.
With respect to the statutory
protection extended to "normal farm
practice", the Court commented:
'...The determination of what
constitutes a 'normal farm
practice' must be made in a proper
context, and that, depending on the
practice under review, the context
may be broad indeed involving the
consideration of many relevant
factors including the proximity of
neighbours and the use they make
of their lands.
"...Even though a practice may be
appropriate from the perspective
of the farming operation that seeks
Agrilaw
impact limits nuisance
to defend it, it will not be
acceptable if it causes
disproportionate harm to -
neighbouring non-agricultural
users.
"...The
farming
industry does
not have carte
blanche to
establish its ,
own
standards
without
independent
scrutiny. Not
all industry
standards
prevail - only
those that are
judged to be
"proper and
acceptable". In my view, this
statutory language requires the
adjudicative body to consider a
wide range of factors that bear
upon the nature of the practice at
issue and its impact or effect upon
the parties who complain of the
disturbance, with a view to
determining whether the standards
is "proper and acceptable".
The factors considered by the
Court in this case to be relevant to
this determination included the
degree and intensity of the
disturbance; the fact that the
neighbour property owners had
owned their property before
commencement of mushroom
production operations; and that the
odours from this operation created a
significantly greater and different
disturbance than anything previously
experienced in the area. The Court
stated:
Farm
protection
act
doesn't
have
unlimited
benefits
"The (property owners)
significantly curtailed their
outdoor activities including
walking and gardening. Several
respondents complained of sore
throats and breathing difficulties,
which they attributed to the
odours.
"...The relative timing of the
establishment of the farming
BERNIE McGLYNN
LUMBER LTD.
BUYER OF HARDWOOD BUSHLOTS
Wholesaler - Hardwood Lumber
Box 385, R.R. 2,
Wingham, Ont. NOG 2W0
BERNIE McGLYNN
Ph/Fax (519) 357.1430
SAWMILL -
R.R. 45, Mildmay, Ont.
(519) 367-57; ' \
JANUARY 2002 37