GREEN BUSH – Disputes between neighbours are common, even in such friendly communities as those which make up Manitoulin Island, but with the growing influx of urban dwellers fleeing the big cities for idyllic rural communities, one such dispute currently appearing before the Normal Farm Practices Board may serve as a cautionary tale for farmers everywhere.
The Farm and Food Production Protection Act, 1998 hearing on March 4, 2021 between Jacqueline and Claudio Rocca, applicants, and Roy Bayer and Doris Bayer, respondents, illustrates how small things can grow into expensive litigation and tribunal hearings and morph into what might be considered fundamental “right to farm” issues.
The two properties in question are located on Indian Mountain Road in the Green Bay area of Manitoulin Island and involve properties that have been farmed there for several generations. While relations between the two owners originally began as quite amicable, with the Bayers taking hay off of the Roccas’ property and the Bayers supplying manure for the Roccas’ garden and the allowing the couple to hunt on their property, relationships have not remained so friendly.
Following a couple of small claims court clashes between the two property owners, the disputes continued on to a hearing before the Normal Farm Practices Protection Board with allegations from the Roccas that the Bayers have substantially changed their farming practices in order to impinge on their rights to enjoy their property.
The matters, which could be of concern to farmers across Ontario, come from the current complaints before the board; in particular: an increase in manure odors and flies caused the respondents’ damage and/or removal of hedgerows, shrubs, trees and vegetative buffers; the additional nuisance of manure-laden dust on the Roccas’ property, gardens, fruiting hedges, shrubs and trees as well as deadstock disposal that has led to odours and flies.
Legal costs incurred by the Bayers for legal representation to defend themselves from the allegations have been substantial to date. The Roccas are representing themselves in court.
Following numerous motions and additions to the case, this latest row ended with the applicants being limited in bringing any new motions forward without the approval of the board as well as the awarding of $1,000 in costs to the Bayers.
“The allegations of contempt made by the applicants are particularly concerning as they are serious allegations and were totally unfounded,” notes the board in its initial finding on the Roccas’ recent motions. “They amount to clearly unreasonable, vexatious and bad faith conduct.” The court went on to award $1,000 in costs to the Bayers.
The Roccas sought an order from the board to allow Ms. Rocca to attend on the Bayer’s properties to assess if their farming practices were “normal.” The board denied that request in November. In making its decision, the board noted that it did not believe Ms. Rocca was qualified to give expert opinion evidence in the areas of minimum distance separations and run-off calculations, saying that “Ms. Rocca, we presume, does not have those qualifications.”
The board did indicate that a properly vetted expert could be sent to assess the practices, but that, although the Bayers could accompany that expert, the Roccas could not.
The Roccas also sought a ruling that the board did not have jurisdiction over those lands located on an unopened road allowance (as is normal practice in the Northeast Town, the Bayers have permission to farm the unopened road allowance adjacent to their property). The board ruled that it did, indeed, have jurisdiction, discounting the Roccas’ claims. The board noted that the court ruling cited by the Roccas in support of their argument, which referenced a travelled road, did not apply in the case of an unopened road allowance such as the one under dispute.
The Roccas also made application to the board to find the Bayers in contempt for not making disclosures on the amount of land they farm. That application was turned down, with the board noting that the small inconsistency in acreage reported was corrected by the Bayers. Requests for information on the number of bales produced by the Bayers and the types of equipment they use while farming were complied with by the Bayers.
“The applicants take the position that, unless the disclosure is consistent with what the applicants may have found during their own research or that they do not like the answer that they received, then the respondents are in contempt of the order,” reads the board decision. “All the issues raised here by the applicants are more properly the subject of cross-examination of the respondents’ witnesses at the hearing.”
The board found that there was no contempt of its order.
In the end, the board decided that the application “should now proceed to a hearing without anymore costly preliminary interruptions from the applicants.”
As such, the Roccas “shall not bring any further motions without leave from the board, save and except a motion for a site visit by a qualified expert.” The board also set out that such “leave will only be granted on a motion brought in writing on notice where the evidence provided by the applicants shows that the motion will have a reasonable prospect of success.”
The allegations before the board have yet to be proven.
As the case is currently before the tribunal, the respondents refrained from providing comment and The Expositor has relied on the public record to outline the bones of this story to date. That information can be found online at canlii.org by searching Rocca v Bayer, 2021.
As this case has strong ramifications for the future of agriculture, rural practices and the right to farm, The Expositor intends to follow developments in this (and perhaps subsequent or similar and related cases) closely in the future.
