Normal Farm Practice – Municipal Duty of Care

The Farming and Food Production Protection Act (FFPPA) provides that “[n]o municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.” Either the person carrying on the “normal farm practice” or the municipality may apply to the Normal Farm Practices Protection Board “for a determination as to whether a practice is a normal farm practice for purposes of the non-application of a municipal by-law”. Where a municipality initiates enforcement proceedings under a municipal by-law which necessitates discontinuance of agricultural operations without consideration of whether such operations constitute a “normal farm practice”, might the municipality be liable to compensate the farmer for resulting damages?

The Ontario Divisional Court recently considered an appeal by a municipality from the decision of a lower court judge refusing to strike out a claim in negligence for damages resulting from the municipality’s purported enforcement of its exotic animal by-law to prevent continuation of a commercial wild boar operation. In the contested claim, the farmer alleged that he had been forced to dispose of his wild boars following notice from the municipality that they would otherwise be forcibly removed, and enforcement proceedings initiated but subsequently withdrawn by the municipality. As a result, the farmer incurred significant production losses.

In the dismissing the municipality’s appeal and permitting the negligence claim to proceed, the appellate court stated:

“The heart of [the farmer’s] claim in negligence is that the City had a duty to consider whether his operation was a ‘normal farm practice’ pursuant to [the FFPPA] before telling him to destroy his herd and charging him under the By-law. [The farmer] argues that [the FFPPA] creates a statutory duty on the part of the City to consider whether a particular operation or practice constitutes a ‘normal farm practice’. He argues that in the circumstances of this case, the City had and breached its duty of care which it owed to him when it advised him to get rid of his herd when it knew or ought to have known that his wild boars operation was a ‘normal farm practice’, and that he suffered damages as a result.”

Considering this claim, the court concluded that, in these circumstances, the municipality might have both a statutory and common law duty of care to consider the question of whether the by-law applies before persons are charged or threatened with prosecution pursuant to its provisions. The court held that the standard of care required to be met by the municipality is that of “a reasonable by-law enforcement officer” and concluded:

“In essence, the allegation is that a reasonable by-law enforcement officer should, in the circumstances have considered whether [the FFPPA] applied. This will be a question fact, as the issue of standard of care always is. If, at trial, [the farmer] establishes that the operation appeared farm-like, in other words, that the City knew that he was raising the animals with a view to slaughter them for commercial sale, the trial judge might conclude that the City knew or ought to have known that [the farmer’s] operation could be a normal farm operation within the meaning of the [theFFPPA], and that the City failed to meet the standard of care when it did not consider referring the matter to the Board for determination.”

“Had the City so considered the issue and thus complied with its duty, it might have delayed enforcement and referred the matter to the Board for determination. I refer to this merely as an example of what the standard of care might be in such a case where the facts as proven at trial do raise the possibility that the animals are being farmed and not kept as exotic animals.”

The FFPPA provides protection for “normal farm practice” from the enforcement of municipal by-laws. The failure of a municipality to consider application of this statutory protection before threatening or commencing enforcement.

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