Indexed as:

Pyke v. Tri Gro Enterprises Ltd.

Between

Craig Pyke et al., plaintiffs, and

Tri Gro Enterprises Ltd., defendants

[1999] O.J. No. 928

Court File No. 69190/95

 Ontario Court of Justice (General Division)

Ferguson J.

March 9, 1999.

(4 pp.)

Practice -- Conduct of trial -- Reopening of trial to hear additional evidence.

Application for leave to adduce additional evidence. During final submissions, the plaintiff Pike and the other plaintiffs indicated that it was their position that the defendants Tri Gro had not proven they were entitled to the protection of the Farming and Food Production Protection Act because they had not adduced sufficient evidence that their operation was conducted under similar circumstances as required by the definition of normal farm practice in section 1(1) of the Act. Tri Gro sought leave to adduce additional evidence on this point.

HELD: Application allowed. The plaintiff's pleadings did not make the aspect of the issue of similar circumstances a live one. Neither was this aspect addressed clearly at trial. It was not recognized by Tri Gro as a live issue until final submissions were made.

Statutes, Regulations and Rules Cited:

Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1, ss. 1(1), 2(1).

Counsel:

Donald R. Good, for the plaintiffs.

Raymond G. Colautti, for the defendants.

1 FERGUSON J.:-- This is my ruling with respect to re-opening, the trial to call additional evidence.

2     During final submissions the plaintiffs indicated that it was their position that the defendants had not proved they were entitled to the protection of the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 because the defendants had not adduced sufficient evidence that their operation was conducted under "similar circumstances" as required by the definition of 'normal farm practice' in s. 1(1). In particular, the plaintiffs contended that the defendants had not established that the comparable operations were adjacent to residences of other persons.

3     Mr. Colautti asked leave to adduce additional evidence on this point.

4     In my view the plaintiffs' pleadings do not make this aspect of the issue of "similar circumstances" a live one. Also during the trial this aspect was not addressed clearly, if at all, with the witnesses and hence was not reasonably recognized by the defendants as a live issue until final submissions were made.

5     In these circumstances I think it is fair to permit the defendants an opportunity to adduce additional evidence on the point. Mr. Good did not in the end oppose this if he is given adequate notice of the gist of the additional evidence and an opportunity to call reply evidence.

6     In my view the issue of "similar circumstances" in the context of the definition of 'normal farm practice' does not necessarily include the specific effect of the operation on neighbours. The Act differentiates a farm practice from any disturbance it may cause. Section 2(1) reveals that the plaintiff may complain of a disturbance and the defendant may seek an exemption from a nuisance law suit by showing that the operation is carried on as a normal farm practice. The concepts are related but normal farm practice does not necessarily include a consideration of the actual effect it has on others. It would be impractical and unreasonably onerous to require a farmer seeking exemption from liability in nuisance to establish that the actual effect of the farm operation is similar to that of other farm operations. In my view the actual effect is a relevant consideration but not one which a farmer must necessarily prove in order to establish that the defendant's operation is a normal farm practice.

7     In this case the focus is on evidence relating to the odour of phase one composting operations carried on to produce substrate for mushroom farming. Without limiting the scope of what evidence may be relevant to show "similar circumstances" of the defendants' operation, I would say that in my view it would include evidence as to the location, the surrounding geographical features, the proximity of neighbours and the uses they make of their lands, the zoning of the farm land and of the neighbours' lands, weather features of the area and other factors which may bear on the potential effect, if any, of the operation on others.

8     It would also include other factors which are already in evidence such as the size of the operation and the formula used.

9     When I say these factors are relevant I am not saying that there must be evidence on each factor in every case. The sufficiency of the scope of evidence and its weight are matters which must be considered in the circumstances of each case which include the extent to which the plaintiffs take issue with the evidence. The court must make a finding as to whether the defendant has established that its operation is carried on as a normal farm practice in the context of the particular case.

10     The defendants shall within 10 days provide the plaintiffs' counsel with a summary of the factual and opinion evidence of any witness they propose to call or recall on this topic. The plaintiffs shall thereafter provide the defendants' counsel within 10 days a summary of the factual and opinion evidence of any witness they propose to call or recall on this topic.

11     The trial co-ordinator shall arrange a telephone conference with both counsel in early April to discuss any further procedural issues and to arrange for a convenient date to continue the trial for the purpose of hearing this evidence.

FERGUSON J.

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