Municipal Liability – “Normal Farm Practice” Compensation

The Farming and Food Production and Protection Act (FFPPA) provides that “no municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation” and permits either the farmer or a municipality to apply to the Board for determination “as to whether a practice is a normal farm practice for purposes of the non-application of a municipal by-law”. Does a municipality have an obligation to consider this “normal farm practice” exemption before attempting to enforce its by-laws? Is it possible for a farmer wrongly restricted in the conduct of “a normal farm practice” to recover compensation from the municipality?

In a recent decision of the Ontario Divisional Court two of three appellate judges have determined that a municipality purporting to restrict a “normal farm practice” through enforcement of a municipal by-law may be liable for resulting damages if it knew, or should have known, that the farmer was exempt from by-law enforcement under provisions of the FFPPA. In the case under consideration, the farmer had cultivated a herd of wild boars for commercial sale. The municipality threatened prosecution under itsExotic Animal By-law if the farmer did not remove the wild boars from his property. Even though the farmer then removed the boars from his property, he was nevertheless charged but the charges were subsequently withdrawn. The farmer then commenced an action against the municipality for compensation including a claim that the municipality breached its duty of care to him when it knew or ought to have known that his wild boars operation was a “normal farm practice” and exempt from by-law enforcement under the provisions of the FFPPA.

The municipality’s motion to strike out this claim was unsuccessful and the municipality appealed to the Divisional Court. In dismissing the municipality’s appeal, the majority of the Divisional Court held that, in such circumstances, a municipality may be liable for damages resulting from its purported enforcement of a municipal by-law in contravention of the FFPPA. While differing on the nature and extent of the duty imposed on a municipality under the FFPPA with respect to enforcement of its by-laws, both judges concurring in the dismissal of the municipality’s appeal agreed that the municipality could be liable. The court concluded:

“The FFPPA may sometimes impose a duty on the City to refrain from enforcing its by-laws on the basis that an activity is part of a ‘normal farm practice’ carried on as part of an ‘agricultural operation’. Those terms have specific definitions under the FFPPA. Whether the City owes a duty to refrain from enforcing its by-law is dependent on particular facts, more specifically whether it had information upon which it knew or ought to have known that a particular individual was exempt from the applicability of the by-law …

The true character of the plaintiff’s claim is that the City caused him damage by enforcing a by-law or by-laws from which he claims to be exempt. Read generously, his pleading asserts that in choosing to proceed as it did the City ran the risk of liability for damages in negligence if it ‘knew or ought to have known’ that the plaintiff was exempt from enforcement of its by-laws …

To ultimately prove the City’s breach of any duty of care to the plaintiff, [the plaintiff] will have to prove facts known or discoverable at the time of the enforcement of the by-laws which would support his allegation that the City knew, or ought to have known, he was exempt from the enforcement of those by-laws.”

A municipality purporting to enforce its by-laws must consider the possible exemption of farmers under the provisions of the FFPPA. Failure to do so may render the municipality liable to the farm operator for his resulting damages.

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