Table of Contents
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 in s. 2(1) that a farmer is not liable in nuisance to any person for a disturbance resulting from a normal farm practice carried on as part of an agricultural operation. Disturbance is 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 Act and the Statutory Powers Procedure Act. 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 legal representation.
The Board protects normal farm practices that are fundamental to farming and food production. While the authority for this protection is the Act, the Board adds value through a conflict resolution process mandated by the Board’s Rules. This process, conducted independently by the Environmental Management Branch of Ontario Ministry of Agriculture, Food and Rural Affairs (“OMAFRA” or the “Ministry”), provides environmental specialists and engineers for the conflict resolution process. This results in a vast majority of farm practice related conflicts being resolved without recourse to hearings. Farmers and residents are thus spared the costs and time involved in preparation for hearings. In addition, since conflict resolution often results in agreements between the parties, farmers enjoy a better relationship with their neighbours after the conflict than if the matter was decided by a Board ruling.
The Board is governed by the Agencies and 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”).
The Board’s mandate is established by the Act. Section 3 establishes the Board and provides for the Minister of Agriculture, Food and Rural Affairs to appoint the Chair, Vice-Chairs and members. Subsection 4(2) states that the Board has the power to:
- inquire into and to resolve disputes respecting agricultural operations and to determine what constitutes a normal farm practice; and
- make the necessary inquiries and orders to ensure compliance with its decisions.
To provide a fair hearing and decision process to all parties involved in disputes regarding farm practices.
To be acknowledged and respected by all parties in the agricultural, municipal and environmental fields as a fair arbiter of disputes involving farm practices.
The Board is committed to the following values and operating principles:
- Timely, evidence-based, impartial and independent decision-making with clearly reasoned and expressed decisions.
- Respect and consideration.
- Fairness and accessibility.
- Adherence to customer service and adjudicative process principles.
- Technical expertise to independently resolve disputes/complaints prior to coming before the Board, provided by the Environmental Management Branch of OMAFRA.
- Capable and qualified members with adjudicative experience and knowledge of agricultural matters.
- Administrative, financial and support services provided by OMAFRA.
OMAFRA provides administrative, financial and support services to the Board. Four full-time Ministry employees from Business Services Branch, including two in the role of Board Secretary (one bilingual) and an Administrative Assistant, are assigned to support the Board.
Staff coordinate the administration and operation of the Board by supporting all activities related to prehearings, hearings and settlement conferences, including liaising with parties regarding hearing process and procedures, issuing official correspondence, explaining process and rules of practice and procedure to parties and their counsel, and completing the necessary accountability documents required by government legislation or directives.
Legal services to the Board are provided by the Ministry of the Attorney General through the Legal Services Branch of OMAFRA.
The Board consists of not fewer than five persons, appointed by the Minister, of whom one may be appointed as Chair and one or more of the remaining members as Vice-Chair. Panels of at least three Board members adjudicate hearings. The Board meets as necessary to discuss policy issues. Members are appointed for an initial term of two years and are eligible for reappointment. The term of appointment is generally a maximum of 10 years in total.
The Board is an independent adjudicative agency of the Ontario government. The environmental scan describes the business environment in which the Board operates.
The Board’s volume of cases remain high in comparison to its 30-year history; experiencing an increased volume of applications for both nuisance complaints and by-law issues.
In recent years, some hearings have become more complex due to an increase in motions regarding procedures, site visits, jurisdiction and persons seeking third-party status.
With the 2018 legalization of cannabis in Canada, there is a likelihood of an influx of nuisance (odour and light) complaints regarding cannabis production facilities. Ontario continues to see an expansion of the cannabis production facilities throughout the province. Production facilities in greenhouses tend to be concentrated in Niagara Region and Essex County.
Municipalities have the authority under section 135 of the Municipal Act to pass by-laws for the purposes of regulating the destruction or injuring of trees. Some recent municipal by-laws provide exemptions for normal farm practices, as decided by the Board. The Board is also dealing with a number of nuisance complaints regarding bird bangers/cannons.
The AAD requires provincial agencies to use a risk-based approach to managing agency oversight. Risk assessment and management is reviewed every quarter from the perspectives of both the Board and the Ministry. The most recent risk assessment did not identify any high level or medium level risks; those risks that were identified were assessed as low level from both Board and Ministry perspectives. The table below represents the two low-level risks identified:
1)Operational Risk: Increasing complexity of hearing applications requiring legal advice on acceptance or rejection.
Before deciding to hear a case, the Chair reviews the application. The complexity of the application can increase the time required for this review from 15 minutes to several hours, potentially increasing the cost of each occurrence by thousands of dollars. Such complexity can also introduce a need for legal counsel, with associated costs. The increased complexity also tends to result in longer hearings.
Mitigate the risk by ensuring that Board Rules require that all cases coming to the Board first go through a conflict resolution process delivered by Ministry Environmental Management Branch staff. The goal is to resolve at least 80 per cent of cases at this stage, drastically reducing the number of hearings which must be held.
2) Operational Risk: Caseload/number of applications and their complexity could have an impact on the Board’s ability to conduct a timely hearing.
Mitigate the risk by telling stakeholders that the scheduling of matters may take longer than anticipated due to the Board’s caseload, and the time required for a hearing and a decision will often depend upon the complexity of the case.
Overview of Activities
The Board will continue to deliver the following key activities supporting its strategic directions:
Communication with the Public
a. Through its website, the Board will continue to provide the public with information about normal farm practices, what to expect when moving into farming country, the work of the Board, how to apply for a hearing, how to prepare for a hearing, accessibility considerations and the operation and accountability of the Board. The Board’s Rules of Practice and Procedure and Citizen’s Guide are available from the Board’s website and Board Secretary. Past Board decisions are available on www.canlii.org or from the Board Secretary.
a. The Board will process hearing applications with regard to its performance standards.
b. In order to reduce financial burden, minimize the number of hearings and promote agreement between parties, the Board will continue to require that disputes undergo a conflict resolution process before an application is accepted for a hearing.
The Board will:
a. Conduct all Board business according to the customer service standards of the Accessibility for Ontarians with Disabilities Act (“AODA”), as set out in the Board’s Accessibility Document at: www.omafra.gov.on.ca/english/engineer/nfppb/accessibility.htm
b. Endeavour to have hearing procedures adhere to the principles of natural justice and the duty of procedural fairness.
c. Make adequate information on hearing procedures available to parties in a form that is easily understood and meets the requirements of the AODA.
d. Provide full access to information on the Act and the Board, and to all Board decisions. Subject to cost implications, parties will also continue to have full access to transcripts of Board hearings by purchasing them from court reporters.
e. Manage cases at the pre-hearing and hearing stages in a manner that encourages settlement between parties and eliminates or shortens hearings.
f. Complete the processing of hearing applications and issuance of decisions in a timely manner to meet Board service standards.
The NFPPB measures performance in three areas:
a) The speed of the response regarding acceptance or rejection of applications for a hearing is the number of days between receipt of a hearing application and response to applicant on whether the application is accepted for a hearing. This is a measure of the length of time a person who applies for a hearing has to wait before they know when the Board will proceed to hear their case. The measure begins when the Board receives a complete application; it does not include time taken for the applicant to provide missing information. To assist the applicant, the Board has provided full application forms showing all the required information on the NFPPB website linked to the OMAFRA website at: omafra.gov.on.ca/english/index.html
b) The speed of issuance of Board decisions is the number of days between completion of the hearing and release of the decision. This is a measure of the length of time the parties have to wait for the Board’s written decision after the hearing has ended.
Following completion of a hearing, the Board endeavors to release its written decision, with reasons, to the parties according to the following timelines:
I. Hearing lasting less than five days: Decision to be released within 60 business days
II. Hearing lasting five to 20 days: Decision to be released within 90 business days
Ill. Hearing lasting more than 20 days: Decision to be released within 120 business days.
c) The quality of service is a measure of the Board’s commitment to its values and operating principles. The Board measures the incidence of complaints from parties about any aspect of the quality of the Board’s service to them. The performance goal is fewer than three complaints about quality of service for the year.
- Proficient delivery of adjudicative services.
- Party confidence in the Board.
- Efficient decision-making and timely release of decisions.
- Compliance with the Travel, Meal and Hospitality Expenses Directive.
- Compliance with the requirements of the AAD and ATAGAA.
The Board will continue to deliver on its historical key commitments and strategies moving into the 2019-22 business cycles. The Board is redeveloping the website to become compliant with the AODA. These commitments and strategies envelop the Board’s goal of providing a fair and impartial hearing and decision process in an accessible venue. The Board’s focus continues to be on proficient delivery of adjudicative services, confidence in the Board by parties in the application and hearing process, efficient decision making and timely release of decisions and compliance with all regulatory requirements.
The Board is recruiting new Vice-Chairs and Members to replace those appointees’ whose terms will be expiring. In 2017, the Farming and Food Production Protection Act, 1998 was amended to allow for more than one Vice-Chair to be appointed. The Board aims to increase its roster; this will increase the number of applications that can be heard, reducing the time to a hearing and completion of cases. In 2019, a competition will take place for a new Chair.
The Board is responsive to and inclusive of the diversity of Ontario through its people and processes. Recruitment practices are coordinated with the Public Appointments Secretariat (PAS), ensuring a fair and transparent application process.
The Board is guided by the mission of the PAS to ensure the most qualified individuals having the highest personal and professional integrity serve the public on the Province’s provincial agencies. Furthermore, “persons selected to serve must reflect the true face of Ontario in terms of diversity and regional representation.” The Board will ensure its service delivery is responsive to the diverse communities it serves and that it promotes an inclusive workforce.
Orientation, training and mentorship will be provided to ensure these new members can address any issue that arises in proceedings. Members and staff will continue to be diligent in meeting the requirements of the Travel, Meal and Hospitality Expenses Directive. Hearing and travel arrangements will continue to be made in the most cost-effective manner. The Board respects its obligations under AODA. The Board will ensure its Business Plan, Annual Report, and other governance and public accountability documents are in compliance with the AAD and the ATAGAA. In 2019/2020 the Board will complete a review of its mandate.
The Board operates under a budget from OMAFRA and as such does not have its own audited financial statements. The budget will be used to deliver the hearing services and other business priorities of the Board across the province. The budget includes money for members and staff for agency operating expenses associated with hearing service delivery costs related to transportation, communication, services, supplies and equipment.
The proposed budget for 2019-20 is $130,500 which includes money for members and staff for agency operating expenses associated with hearing service delivery costs related to transportation, communication, services, supplies and equipment.
The proposed budget for 2020-21 is $130,500 which includes money for members and staff for agency operating expenses associated with hearing service delivery costs related to transportation, communication, services, supplies and equipment.
The proposed budget for 2021-22 is $130,500 which includes money for members and staff for agency operating expenses associated with hearing service delivery costs related to transportation, communication, services, supplies and equipment.
The Board conducts hearings throughout Ontario, as necessary, to improve its accessibility to all parties.
The Board website is located on the OMAFRA site under Agencies, Boards and Commissions. The current website address is www.omafra.gov.on.ca/english/engineer/nfppb/nfppb.htm . General information about the Board, information on how to prepare for a hearing, the Citizen’s Guide, the Rules of Practice and Procedure and agency accountability documents are posted on the website. The site is accessible in English and French. The Board is revising the current website to include downloadable documents. The website will meet accessibility requirements and is expected to be completed in 2019. Board Decisions are posted on the Canadian Legal Information Institute (CanLII) website at www.canlii.ca/en/on/onnfppb.
There is an established system for the retention of Board documents, for making such documents publicly available when appropriate, and for ensuring compliance with the Freedom of Information and Protection of Privacy Act and the Archives and Recordkeeping Act, 2006 where applicable.
All inquiries to the Board can be made as indicated below. The Board Chair acts as the spokesperson for all media inquiries.
Normal Farm Practices Protection Board
1 Stone Road West, 2nd Floor NW
Guelph, ON N1G 4Y2
Toll free: (888) 466-2372 ext. 519-826-3433
Fax: (519) 826-4232