August 21, 2004
Last month, 150 residents of Ashburn, Ont., filed a civil lawsuit against Greenwood Mushroom Farms, claiming the stench from the farm has created a nuisance. Thanks to a provincial law designed to promote agriculture, the judge hearing the case will have to consider not whether GMF’s operations are harmful but whether they are "normal" – a standard that defies economics and undermines the property rights of all rural residents.
Since GMF’s establishment a decade ago, it has plagued its neighbours with foul odours. The odours – produced by the composting of the substrate in which mushrooms are grown – have sickened some nearby residents, burning their eyes, noses and throats and making breathing difficult. They have disrupted lives in countless other ways, as well. No longer can those living near the farm plan on eating outside, hanging clothes on their lines or working in their gardens. When the odours are strong, they must close their windows, even in the hottest weather. Their dogs pick up the odours and bring them inside. Their clothes pick up the odours and take them to work. Colleagues comment. Friends and relatives stay away.
Local residents, many of whom have lived on and farmed their land for decades, have nothing against the odours associated with traditional farming operations. But these are no ordinary odours. Neighbours liken them to the smells of ammonia, rotten eggs, decaying cabbage and fecal material. They describe them as noxious, rancid, foul and horrendous. At times, they say, they have made living in the vicinity unbearable.
GMF’s neighbours want the farm to find another, more appropriate, site for its substrate preparation. Alternatively, they would like the farm to enclose its composting operation to confine its odours. Whatever the means, their ends are clear: They are requesting an injunction ordering GMF to not discharge noxious emissions. They are also asking for more than $10-million in damages.
The residents of Ashburn have a classic nuisance claim: GMF, they charge, has violated their common law property rights by interfering with the use and enjoyment of their properties. Until 1988, their recourse would have been straightforward. If they could have convinced the court of the nuisance, they would have been entitled to damages and an injunction.
But things are no longer so simple. In 1988, the Ontario government severely undercut property rights by limiting farmers’ liability for the nuisances they created. It passed the Farm Practices Protection Act, which specified that as long as a farmer did not violate one of several statutes, he would not be liable in nuisance for any odour, noise or dust resulting from a normal farm practice.
A decade later, under the new Farming and Food Production Protection Act (FFPPA), the government expanded the list of protected disturbances to include flies, light, smoke and vibrations. It also broke the link between compliance with statutes and protection from civil liability. As of 1998, any farmer – not just one who complies with statutes – "is not liable in nuisance to any person for a disturbance resulting from an agricultural operation carried on as a normal farm practice."
The FFPPA defines a normal practice as one "conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances" or, alternatively, as one that "makes use of innovative technology in a manner consistent with proper advanced farm management practices." The Ministry of Agriculture offers this test of normalcy: "Would a farmer with average, to above average, management skills use this same practice on his/her farm under the same circumstances?"
GMF’s practices have been debated in the courts before. Almost nine years ago, 19 neighbours sued GMF for disrupting their lives and the use of their properties. In 1999, trial judge Donald Ferguson determined that odours from the farm’s composting process did indeed constitute a nuisance. He acknowledged that the mushroom farmers had taken "all the reasonable precautions possible in the current state of the art of mushroom composting." However, he concluded, "the use of the defendants’ land for composting is unreasonable having regard to the fact that they have neighbours."
Justice Ferguson had no trouble deciding that GMF’s practices were not normal, in part because the farm operated "in an area where the nuisance it produced was completely out of character." The intensity and frequency of the nuisance, he found, had "fundamentally changed the rural environment the plaintiffs had enjoyed before." He awarded $263,500, plus interest, in damages. In 2001, the Court of Appeal upheld the decision. The following year, the Supreme Court refused GMF leave to appeal.
Usually, it isn’t the courts that decide whether a farming practice is normal, and therefore acceptable. That determination generally falls to the government-appointed Normal Farm Practices Protection Board (NFPPB). The board holds hearings into complaints. If it finds that the disturbance complained of results from a normal farm practice, it dismisses the application.
Despite the earlier court rulings, the NFPPB is currently conducting its own investigation into GMF. The board has insisted that it is not bound by Justice Ferguson’s decision and has hinted that its conclusion might be different: "Even though normal farm practices may cause ‘discomfort and inconvenience’ to other persons, those discomforts and inconveniences are the price which may have to be paid if the Province of Ontario chooses to maintain viable agricultural businesses."
In the past, the NFPPB has shown considerable sympathy for mushroom farmers. In a 1999 decision concerning the Mushroom Producers’ Co-operative in Burford Township, the board "somewhat reluctantly" concluded that conventional substrate composting was consistent with normal farm practices. It acknowledged that the process created extremely unpleasant odours – odours so unpleasant that they made some nearby residents vomit. It expressed its sympathy, saying "there is no doubt that their enjoyment of life has been substantially diminished."
The board admitted that mushroom farmers in three other provinces and in several European countries used less offensive methods of substrate production. But it decided that the use of such alternatives remained at an experimental stage in Ontario, and could not yet be considered custom or standard. Because conventional composting methods remained standard in the industry, they would be protected as normal practices under the FFPPA.
A system that permits farmers to harm their neighbours with impunity, as long as they do so using normal practices, strikes many as unjust. Justice Ferguson admitted to being troubled by the act, explaining, "From the plaintiffs’ point of view it does not seem just that the neighbour should suffer a serious loss without compensation in order that the whole community can benefit from the production of agricultural products."
Writing for the Court of Appeal in the same case, Justice Robert Sharpe expressed similar reservations: "This Act represents a significant limitation on the property rights of landowners affected by the nuisance it protects. By protecting farming operations from nuisance suits, affected property owners suffer a loss of amenities, and a corresponding loss of property value. Profit-making ventures, such as that of the appellants, are given the corresponding benefit of being able to carry on their nuisance-creating activity without having to bear the full cost of their activities by compensating their affected neighbours. While the Act is motivated by a broader public purpose, it should not be overlooked that it has the effect of allowing farm operations, practically, to appropriate property value without compensation."
No one understands this better than GMF’s neighbours. Back in 1996, Patricia Pyke, who has since fled the neighbourhood, wrote in her journal about a rare respite from the mushroom farm’s stench: "I stood outside this morning, it was pouring rain and I just drank in the smells of this beautiful spring morning. How precious smells can be. The smells of the earth, the rain, were indescribably wonderful. How wrong it is that [GMF] could just move in and take all this away from us."
The right to offend by Don Gibbs
Financial Post August 30/2004
Re: Invasive Agriculture, Elizabeth Brubaker, Aug. 21.
Ms. Brubaker wrote an excellent article, but I would like to point out that this is not just an Ontario problem, nor is the problem just related to odours.
In British Columbia, we have very similar "right-to-farm" legislation, as do most if not all Canadian provinces, and unreasonable farm practices are as vigorously protected on the West Coast as they are in Ontario.
I belong to a group of rural residents in B.C. who are affected by extreme noise pollution from fruit and berry growers who use noise devices to scare birds away from their fruit crops. The device most commonly used is the propane cannon, which fires shotgun-like blasts at noise levels up to 130 decibels.
Farmers are permitted to fire these devices from 6 a.m. to 8 p.m. at very frequent intervals and in very close proximity to neighbours’ homes, making normal life impossible for nearby residents.
This practice is protected by B.C.’s right-to-farm legislation.
Our group has set up a Web site – www.banthecannons.com – to publicize this issue, and we have heard from rural residents all across the country who also suffer from this form of extreme noise pollution.
It is my opinion that right-to-farm legislation has gone beyond reason in its zeal to protect farm practices. I am sure that there is a need to protect a farmer’s right to spread manure, even though this activity causes unpleasant odours for a few days or weeks and some might take exception to it. However, the legislation goes too far when it protects extremely offensive composting odours that are a year-round, non-stop intrusion on nearby neighbours.
Similarly, I am sure the legislation is meant to protect a farmer’s right to operate noisy farm equipment to harvest his crops, or run fans to ventilate his barns, but extreme noise pollution from propane cannons has been allowed to slip into this legislation and is now considered "normal."
No noise or odour that so negatively affects peoples’ lives on a continuous basis should ever be considered normal or acceptable in this day and age.
Another fact in Ms. Brubaker’s article to be emphasized is that affected residents have nowhere to turn for help with their problem. Their rights are not protected by anyone.
The only group that a person can appeal to about an abusive agricultural practice is the Farm Practices Review Board, a body made up of members from the farming community, and in B.C. at least, a board that falls under the jurisdiction of the Ministry of Agriculture. There is no independent group or neutral court of law that a person can appeal to when affected by an invasive farm practice. What ever happened to our basic rights and freedoms as Canadian citizens?
Everyone wants farming to be protected and to prosper. Of that there is no question. But one has to question legislation that protects extremely intrusive farm practices, practices that disrupt the lives of surrounding residents for months on end, and from which there is no escape.