Overspray – Normal Farm Practice?

Where herbicide spraying is conducted in accordance with accepted standards but nevertheless results in overspray causing damage to adjacent landowners, are these neighbours entitled to compensation?

Ontario’s Farm Practices Protection Act (FPPA) exempts from liability in nuisance “any odor, noise or dust resulting from the agricultural operation as a result of a normal farm practice.” The FPPA defines a “normal farm practice” to include “a practice that is conducted in a manner that is consistent with proper and accepted customs and standards”. The Supreme Court of Nova Scotia recently considered similar farm protection legislation in Nova Scotia in determining whether herbicide overspray damage resulting from spraying conducted in accordance with normal farm practice could be recovered by court action. In the case under consideration, the defendant’s spraying had resulted in herbicide drift onto the adjacent property of the plaintiff organic farmers causing both human and animal health impacts as well as crop damage.

As in the FPPA, the relevant provincial legislation included in the liability exemption odor, noise and dust impacts resulting from agricultural spraying but also included in this exemption “other disturbance”. The court determined that herbicide overspray resulting from a spray operation conducted in accordance with normal farm practice is such a “disturbance”. Different from the FPPA, the Nova Scotia legislation provided for exemption of liability in both nuisance and negligence. In dismissing the plaintiff’s claim in negligence, the court held:

“The plaintiffs’ claim, which is based entirely upon allegations of negligence during spraying and ditching, could only succeed if the defendants did not meet the applicable standard of care. For agricultural operations, such as those in which the defendants engaged, that standard of care is determined with reference to the definition of ‘normal farm practice’…

“A farmer’s immunity … from a negligence or nuisance action stemming from an agricultural operation is contingent upon a finding … that he or she complied with normal farm practice.”

While the impacts of herbicide overspray may similarly be protected in Ontario where they result from a spraying operation conducted in accordance with normal farm practice, the liability exemption limited to claims in nuisance may still leave open possible claims in negligence. Certainly herbicide spraying conducted otherwise than in accordance with normal farm practice may expose the landowner to claims in nuisance and negligence from neighbouring landowners for damages they may suffer.

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