Table of Contents
- Message from the Chair
- Introduction
- Operating Principles
- 2016-17 Highlights
- Board Activities
- Operational Performance
- Financial Performance
- Staff Resources
- Recruitment Activity
- Appendix 1
- Appendix 2
Message from the Chair
I am pleased to present the Annual Report of the Normal Farm Practices Protection Board for the fiscal year ending March 31, 2017. The report focuses on the Board's achievements for the year. On behalf of the members of the Normal Farm Practices Protection Board, I wish to thank the Minister of Agriculture, Food and Rural Affairs for the services provided to the Board according to the Memorandum of Understanding, and for facilitating the smooth and effective operation of the Board.
The Normal Farm Practices Protection Board (the "NFPPB" or the "Board") is established under the Farming and Food Production Protection Act, 1998 (the "Act") to hear and rule on issues pertaining to farm practices. By protecting normal farm practices, the Board helps to preserve the competitiveness of Ontario farmers in the face of increasing external pressures.
In accordance with the Preamble of the Act, the Board seeks to balance the needs of the agricultural community with provincial health, safety and environmental concerns. Under the Act, the Board holds hearings on nuisance complaints about farm practices, applications seeking non-application of municipal by-laws, and referrals from judges. The Board rules on whether the farm practices at issue are "normal farm practices."
The Act provides, under s.2(1) "A farmer is not liable in nuisance to any person for a disturbance resulting from an agricultural operation carried on as a normal farm practice." Disturbance is further defined as meaning odour, dust, flies, light, smoke, noise and vibration. The Act further preserves the ability to conduct normal farm practices as part of an agricultural operation pursuant to s.6(1), "No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation."
Board proceedings are subject to the Farming and Food Production Protection Act, 1998 ("the Act") and the Statutory Powers Procedure Act (SPPA). Board hearings are less formal than court proceedings, but follow the rules of natural justice. Hearings are managed in such a way that any complainant or respondent may present their case with or without representation by legal counsel. This promotes access to the services of the Board for all.
The Board is governed by the Agency Appointments Directive (AAD), the Travel, Meal and Hospitality Expenses Directive, and other applicable Directives from Management Board of Cabinet and Treasury Board. Board members are made aware of the AAD and its requirements. All accountability and governance documents required for the Board have been published on the Board's web page in accordance with the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (ATAGAA). Reimbursements of Board members' expenses were all within the guidelines of the Travel, Meal and Hospitality Expenses Directive.
On behalf of the Board members, I look forward to continuing to serve the agriculture and food sectors, as well as rural communities, throughout Ontario.
Yours truly,
Kirk W. Walstedt, Chair
Normal Farm Practices Protection Board
Introduction
The Normal Farm Practices Protection Board (the Board) is established under the Farming and Food Production Protection Act, 1998 (the Act) to rule on issues pertaining to farm practices. The Act protects farmers from disturbance complaints, provided the farmer is following normal farm practices. Disturbances covered are those arising from odour, dust, flies, light, smoke, noise and vibration. The Act also protects farmers from municipal by-laws that restrict their normal farm practices.The Act defines "normal farm practice" as a practice that:
- 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
- makes use of innovative technology in a manner consistent with proper advanced farm management practices.
OMAFRA agricultural engineers or environmental specialists conduct conflict resolution on each complaint. This Ministry-led conflict resolution process successfully resolved 95 percent of all complaints in the 2016-17 fiscal year.
For unresolved cases, the Board may conduct a pre-hearing/settlement conference with the parties. The pre-hearing conference identifies issues and determines hearing logistics, and the settlement conference is a further attempt at settlement. If the settlement conference is unsuccessful, the Board conducts a hearing to determine, among other things, whether the farm practice involved is a "normal farm practice."
2016-17 Highlights
Complaints about Farm Practices
The operations of the Board are governed by the Farming and Food Production Protection Act and its own Rules of Practice and Procedure. The Rules require that complaints about farm practices go through the conflict resolution process conducted by Ministry of Agriculture, Food and Rural Affairs agricultural engineers and environmental specialists. If this process is not successful then parties can bring an application before the Board.
Those parts of the province with high population density in an agricultural area often experience higher odour and noise complaints. For example, Niagara Region experiences a high volume of noise complaints from the use of bird cannons/bangers (noise-makers designed to protect grape harvests from birds). The distribution of complaints by county may be found in Appendix 1.
Complaints from farmers continue to centralize on two distinct types of municipal by-laws: site alteration and tree-cutting. Site alteration by-laws seek to limit the quantities of soil that can be imported onto farms in a municipality and set conditions for importing soil. Tree-cutting by-laws limit the trees that can be cut in the municipality. In instances where farmers consider these by-laws to be too restrictive, they have applied to the Board for a ruling exempting their farm practices from the by-laws.
| Table 1. Farm Practice Complaints Received by OMAFRA | |||||||||
| Odour | Noise | Dust | Flies | Smoke | Light | Vibration | By-Law | Total | |
| 2016-2017 | 66 | 68 | 2 | 21 | 2 | 0 | 0 | 18 | 177 |
| 38% | 38% | 1% | 12% | 1% | 0% | 0% | 10% | ||
| 2015-2016 | 45 | 28 | 2 | 20 | 0 | 1 | 1 | 10 | 107 |
| 40% | 26% | 1% | 19% | 0% | 1% | 1% | 9% | ||
| 2014-2015 | 48 | 45 | 2 | 20 | 1 | 0 | 0 | 15 | 131 |
| 37% | 34% | 2% | 15% | 1% | 0% | 0% | 11% | ||
| 2013-2014 | 53 | 56 | 7 | 18 | 3 | 0 | 0 | 19 | 156 |
| 34% | 36% | 4% | 12% | 2% | 0% | 0% | 12% | ||
| 2012-2013 | 65 | 42 | 7 | 35 | 3 | 3 | 0 | 9 | 164 |
| 40% | 26% | 4% | 21% | 2% | 2% | 0% | 5% | ||
The Board successfully met performance standards for resolving complaints without a hearing and the length of time to issue Board decisions after the completion of hearings.
The Board received one complaint from a party in the matter of Cox v. Town of Mono (Board File 2014-05). The complainant felt both ministry staff involved in the conflict resolution process and the Board, on their own initiative, should have dismissed the case prior to conducting a costly hearing. Under the Board's Public Complaint Policy, the Board will accept complaints about the quality of service related to Board policies and procedures, and the application of those policies and procedures or the conduct of the Board members and staff. The concerns raised by the complainant were related to how the Board applied the law in this matter rather than how the Board or its staff conducted themselves over the course of the hearing process.
Board Activities
Hearings
Five cases, for which OMAFRA's agricultural engineers and environmental specialists were unable to elicit a resolution between the parties, applied to the Board for resolution. Of those cases, two are scheduled for pre-hearing conferences, and the others were either withdrawn or the applications were dismissed.
| Table 2. Hearing Applications by Type | |||
| Fiscal Year | Nuisance Applications | By-law Applications | Total |
| 2016-2017 | 1 | 4 | 5 |
| 2015-2016 | 5 | 7 | 12 |
| 2014-2015 | 2 | 3 | 5 |
| 2013-2014 | 1 | 4 | 5 |
| 2012-2013 | 2 | 3 | 5 |
The high volume of cases (12) received by the Board in 2015-16 resulted in a high number of cases carrying over into 2016-17 for the Board to manage.
Operational Performance
The Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 (ATAGAA) came into force (in part) on April 7, 2010. The purpose of the ATAGAA is to ensure that adjudicative tribunals are accountable, transparent and efficient in their operations by having in place governance and public accountability documents which include a Memorandum of Understanding, Business Plan and Annual Report; and a Mandate and Mission Statement, Consultation Policy, Service Standard Policy, Ethics Plan and Member Accountability Framework by April 1, 2012. The Board met those requirements.
In accordance with ATAGAA, the Board reviewed the public accountability documents in November of 2016 to determine whether any amendments were required. The Board was satisfied with the documents as written.
Performance Measures and Results
The Board measures the performance of its programs in four areas:
- Ministry Conflict Resolution System: The effectiveness of NFPPB Rules of Practice and Procedure Rule 65(1) which states: "Before accepting an application for a hearing, the Board shall be satisfied that the Farm Practices Conflict Resolution Process established by the Environmental Management Branch of the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) has been applied and has been unsuccessful in resolving the conflict between the parties."
The goal is that a minimum of 80 percent of complaints should be resolved by the conflict resolution system.
Results: Through the dispute resolution process, OMAFRA advises that Ministry staff were able to resolve 94 percent (166 of the 177) of the nuisance and by-law complaints received in 2016-2017, thereby avoiding potential Board hearings.
- Timeliness of response to request for hearing: Number of days between receipt of a hearing application and response to applicant on whether the application is set for a hearing.
On receipt of a complete application for a hearing, the Board will issue a decision on whether the case is accepted for hearing within 20 calendar days.
The measure begins when the Board receives a complete application; it does not include time taken for the applicant to provide missing information.
Results: The Board received eight applications for a hearing during the 2016-17 fiscal year. In all of those cases, the Board surpassed its acceptance metric in 7 out of 8 instances.
- Timeliness of Board decisions: Following completion of a hearing, the Board endeavors to release its written decision, with reasons, to the parties according to the following schedule:
a) Hearing lasting less than 5 days: decision released within 60 business days
b) Hearing lasting 5 to 20 days: decision released within 90 business days
c) Hearing lasting more than 20 days: decision released within 120 business days.
This is a measure of the length of time the parties have to wait for the Board's decision after the hearing has ended. It is calculated by counting the number of days between the completion of the hearing and the release of the decision.
Results: During the 2016-17 fiscal year, the Board met its decision release performance standards in every case.
There were three hearings held during the 2016-17 fiscal year. For the two hearings lasting less than five days, both of those decisions were released well within the 60 business day goal at 16 and 26 business days. There was one hearing held lasting five to 20 business days. Its decision release met the performance standard of 90 business days; it was released in 5 business days.
- Quality of Service: The Board's goal is fewer than 3 complaints about the quality of service received for the fiscal year.
The measure is the incidence of complaints from parties about any aspect of the quality of the provision of the Board's service.
Results: There were no complaints regarding quality of the Board's service during the 2016-17 fiscal year.
Financial Performance
The Board is funded by the ministry under a Memorandum of Understanding (MOU) signed by the Minister of Agriculture, Food and Rural Affairs and the Chair of the Board. The MOU sets out the relationship between the Board and OMAFRA, to enable the Board to operate "at arm's length" from OMAFRA. The "arm's length" relationship is vital to ensure that OMAFRA does not have any influence on the decisions of the Board regarding cases that come before it.
The total remuneration paid to Board members for adjudicative services rendered during 2016-17 was $109,907; this amount includes per diem payments and travel expenses.
| Table 3. Financial Performance | ||||
| 2015-2016
Actual |
2016-2017
Projected |
2016-2017
Actual |
Explanation of Variances | |
| Board Member Per Diems | $80,392 | $49,000 | $90, 989 | The high volume of cases (12) received by the Board in 2015-2016 resulted in still a high number of cases being managed in 2016-2017. |
| Travel Expenses | $18,642 | $8,000 | $18,918 | |
| Translation Services (Decision Summaries) | $1,811 | $5,000 | $3,792 | Board released four decisions in 2016-2017 |
| Court Reporters | $5,781 | $3,000 | $3,050 | Anticipated target for court reporter services was not met last year. |
| Miscellaneous | $8,653 | $2,000 | $4,550 | Required security services for one case. |
| Total | $ 115,279 | $67,000 | $121,088 | Outstanding cases from 2015-2016 increased the Board workload in 2016-2107 |
Staff Resources
The ministry has three full-time employees that support and provide services to OMAFRA's three adjudicative agencies which includes the Board. The ministry provides administrative and financial support through the Business Services Branch, Research and Corporate Services Division. Legal services to the Board are provided by the Ministry of Attorney General through the Legal Services Branch of the Ministry of Agriculture, Food and Rural Affairs.
| Table 4. Board Members 2016-2017 | ||||
| Name | Address | Occupation | Original Appointment | Appointment Expiry Date |
| Kirk W. Walstedt, Chair | Maidstone | Lawyer | June 1, 2013 | June 30, 2017 |
| Glenn Walker, Vice-Chair | Ridgetown | Lawyer | May 11, 2015 | May 10, 2017 |
| Robert Brander | Caledon | Beef and cash crop farmer | Oct. 26, 2015 | Oct. 25, 2017 |
| Jane Sadler Richards | Ailsa Craig | Scientist and cash crop farmer | Oct. 26, 2015 | Oct. 25, 2017 |
| Marty Byl | Niagara-on-the-Lake | grape grower | July 17, 2007 | July 16, 2017 |
| Douglas Eadie | Kincardine | cash crop farmer | Apr 15, 2011 | Apr 14, 2019 |
| Tom Field | Glencoe | dairy, beef, sheep, cash crop farmer | Feb 27, 2009 | Feb 26, 2019 |
Recruitment Activity
For the period of April 1, 2016 to March 31, 2017, two members (Mr. Walker and Mr. Byl) were recommended for reappointment. The Board did place an advertisement on the Public Appointments Secretariat website for additional members. It is anticipated that additional members may be added to the Board in the 2017-18 fiscal year.
Appendix 1
| Appendix 1. Distribution of Complaints Received in 2016/2017 by County | |||||||
| County | Odour | Noise | Dust | Flies | Smoke | By-Law | County Totals |
| Bruce | 1 | - | - | - | - | - | 2 |
| Chatham-Kent | 1 | 2 | - | - | - | - | 3 |
| District of Cochrane | 1 | - | - | - | - | - | 1 |
| District of Temiskaming | - | - | - | - | - | 1 | 1 |
| District of Muskoka | 1 | - | - | - | - | - | 1 |
| Dufferin | 2 | 8 | - | - | - | - | 10 |
| Durham | 1 | 1 | - | 1 | - | - | 3 |
| Elgin | - | 3 | - | - | - | - | 3 |
| Essex | 5 | 6 | - | 1 | 1 | 1 | 14 |
| Frontenac | 1 | - | - | - | - | 3 | 4 |
| Grey | 5 | - | - | 1 | - | 1 | 7 |
| Haldimand | 1 | - | - | 1 | - | 5 | 7 |
| Haliburton | - | - | - | - | - | 1 | 1 |
| Halton | - | 1 | - | - | - | - | 1 |
| Hamilton | 1 | - | 1 | - | - | - | 2 |
| Huron | 2 | 1 | - | - | - | 1 | 4 |
| Lambton | 3 | - | - | - | 1 | - | 4 |
| Leeds & Grenville | 1 | - | - | - | - | - | 1 |
| Lennox & Addington | - | 1 | - | - | - | - | 1 |
| Middlesex | 5 | 2 | - | - | - | - | 7 |
| Niagara | 12 | 38 | - | 12 | - | 2 | 64 |
| Norfolk | - | 2 | - | 2 | - | 5 | |
| Ottawa | 1 | - | - | - | - | - | 1 |
| Oxford | 1 | - | - | 2 | - | - | 3 |
| Peel | 1 | - | - | - | - | - | 1 |
| Perth | 4 | - | - | - | - | - | 4 |
| Prescott & Russell | 1 | - | - | - | - | - | 4 |
| Prince Edward | 1 | 1 | - | - | - | - | 2 |
| Renfrew | 2 | - | - | - | - | - | 2 |
| Simcoe | 5 | 1 | - | 1 | - | 1 | 8 |
| Stormont, Dundas, Glengarry | 6 | 1 | - | - | - | - | 7 |
| Sudbury | 1 | - | - | - | - | - | 1 |
| Wellington | - | - | 1 | - | - | 1 | 2 |
| York | - | - | - | - | - | 1 | 1 |
| Total | 66 | 68 | 2 | 21 | 2 | 18 | 177 |
Appendix 2
Reference Materials
Board documents are accessible to the public, as required by the Adjudicative Tribunals Accessibility, Governance and Appointments Act (ATAGAA), in formats as addressed in the Board's Accessibility Document under the Accessibility for Ontarians with Disabilities Act (AODA).