Neighbour impact limits nuisance protection

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 wellbeing 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 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 standard 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 neighbouring 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:

    “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 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.

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