Indexed as:
Pyke v. Tri Gro Enterprises Ltd.
Between
Craig Pyke et al., plaintiffs, and
Tri Gro Enterprises Ltd., et al., defendants
[1999] O.J. No. 3217
101 O.T.C. 241
90 A.C.W.S. (3d) 988
Court File No. 69190/95
Ontario Superior Court of Justice
Ferguson J.
August 23, 1999.
(327 paras.)
Torts -- Nuisance -- Particular nuisances -- Odours -- Injury to health and comfort -- Practice -- Evidence and proof -- Defences -- Statutory authority -- Statutes -- Operation and effect -- Commencement, duration and repeal -- Repeal -- Substitution for repealed statute.
Action by Pyke and others in nuisance. The plaintiffs owned and resided on properties in an area zoned for agricultural use. The defendants, Tri Gro and its officers and directors, commenced operating a mushroom farm in the area in October 1994. Within a month there were complaints about the odours emanating from the farm. In response to the complaints the composting formula was changed in early 1995, and the defendants claimed that the problem had been significantly reduced by May. The plaintiffs testified that the odours persisted. Some of the plaintiffs kept detailed logs. They described nauseating smells of varying frequency and intensity which kept them from going outdoors and interfered with their sleep. Some plaintiffs experienced nausea, burning eyes, or shortness of breath. Some of them occasionally observed a white haze with an ammonia smell. One plaintiff had been a livestock farmer who was used to the smell of manure, but found the mushroom farm smell objectionable. An agriculture professor testified as to his personal observations of objectionable odours produced by the mushroom farm. An employee of the farm kept logs from 1995 to 1999 which indicated that he rarely noticed foul odours as he drove to and from the farm with his car window open. The defendants argued that their farming operation was protected by legislation. The alleged nuisance continued from 1995 to 1999, during which time the statute defining a normal farm practice was repealed and substituted with a new statute with a new definition. The plaintiffs argued that the statutory protection was not available, as the defendants had breached the Environmental Protection Act.
HELD: Action allowed. The farm produced intolerable odours which affected the physical well-being of the plaintiffs to a significant degree and substantially disrupted their use of the lands. Therefore, the odours constituted a nuisance and the defendants were in breach of the Environmental Protection Act. Because the farm practices law was changed during the course of the nuisance, the claims were considered in two time frames. However, the effect was the same because, at no time did the defendants engage in normal farm practice, as they commenced operations in an area where the nuisance was completely out of character in light of its frequency and intensity. The plaintiffs were entitled to damages in an amount to be determined.
Statutes, Regulations and Rules Cited:
Environmental Protection Act, ss. 1(1), 14(1), 194.
Farm Practices Protection Act, R.S.O. 1990, c. F.6, ss. 1(d), 1(i), 2, 6.
Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1, ss. 1(1), 1(2), 2, 2(1), 2(2), 2(3), 2(4), 2(5), 6(1), 6(15).
Health Protection and Promotion Act.
Interpretation Act, s. 14.
Counsel:
Donald R. Good, for the plaintiffs.
Raymond G. Colautti, for the defendants.
FERGUSON J.:--
Table of Contents
Background of the Plaintiffs
Background of the Defendants
Evidence of the Defence About Odours
Mac Snobelen
Clay Taylor
Brent Taylor
Dr. Rinker
Donald Van Dusen
Evidence of the Plaintiffs About Odours
Christopher and Christa Downes
Background
Effect
Margaret Davis
Background
Effect
Sally and Kenneth Giles
Background
Effect
1094581 Ontario Limited
Background
Effect
Gordon and Karen Donnison
Background
Effect
Leslie and Donald Walker
Background
Effect
Ronald Chapman
Background
Effect
Bernice and Jean Gardner
Background
Effect
Patricia and Craig Pyke
Background
Effect
Gary and Erlyne Young
Background
Effect
Issues
1. Does the phase one composting on the mushroom farm produce offensive odours?
2. How can the conflicting evidence about odours be reconciled?
3. Do the odours constitute a nuisance?
The law of nuisance
Findings as to whether the odours constitute a nuisance
4. Are the plaintiffs' claims in nuisance barred by the "right to farm" legislation?
A. What protection do the statutes provide to farmers from civil actions based on the common law of nuisance?
(i) analysis of the Farm Practices Protection Act
(ii) analysis of the Farming and Food Production Act, 1998
B. Which statutes apply to this case?
C. Should the court refer the issue of what is a normal farm practice to the Board?
D. Do the right to farm statutes bar the plaintiffs' claims because the defendants' operation is protected as a normal farm practice?
E. What is the significance of the pending charge under the Environmental Protection Act?
F. Do the defendants lose the protection of the Farm Practices Protection Act up to May 10, 1998 because they were violating the Environmental Protection Act?
5. Are the defendants liable in negligence?
6. Are the directors of the corporate defendants personally liable?
Conclusion on Liability
1 The plaintiffs are suing the operators of a mushroom farm because they allege it produces odours which disrupt their lives and the use of their properties. The alleged source of the odours is the farm's composting operation.
BACKGROUND OF THE PLAINTIFFS
2 The plaintiffs are property owners on or near Heron Road in the Town of Whitby in the Regional Municipality of Durham. All but one live on their properties. Most of them use their properties only for residential and recreational purposes although some lease part of their lands to farmers. Some of the plaintiffs actively farmed their lands in the past.
3 All but one of the plaintiffs owned their lands before the arrival of the defendants' mushroom farm.
4 The area is zoned agricultural and the operation of a mushroom farm is permitted by the zoning.
5 The evidence did not reveal the details of all the development in the area but did reveal some significant changes to this rural landscape. Mr. and Mrs. Davis originally owned 100 acres which they farmed. In the 1970's they obtained permission to sever eight 10 acre lots some of which are now occupied by other plaintiffs.
6 At some point the Town of Whitby granted a variance to a radar business which started an industrial operation near the end of Heron Road. It is this property which the defendants now own. Sometime around 1990 one of the plaintiffs wanted to register a plan of subdivision to create residential lots. The Town opposed this but permission was granted by the Ontario Municipal Board.
7 This history helps explain how the conflicts in land use evolved.
8 I shall outline more of the plaintiffs' background when I summarize their evidence about odours.
BACKGROUND OF THE DEFENDANTS
9 The Greenwood Mushroom Farm is a partnership consisting of TRI GROW Enterprises Ltd. and a business called G.M.F. Part 2. G.M.F. Part 2 is also a partnership; its partners are Brent Taylor Holdings Ltd., Rick Campbell Holdings Ltd., and Snobelen Mushrooms Ltd.
10 The individual defendants are employees or officers and directors of the defendant corporations.
11 There are about 25 large mushroom farms and another few small ones in the province. The Greenwood Mushroom Farm is the six largest. I shall refer to it as GMF.
12 Mr. Snobelen is the "senior partner" of GMF. He testified that there were several managers of the partnership including himself and Clay Taylor. Mr. Taylor is responsible for purchasing the material for composting, establishing the composting procedures and formulas and supervising the composting operation. Mr. Snobelen describes himself as the senior partner and it is clear from all the testimony that he exercises a general supervisory role.
13 The lead hand working in the composting operation is Jack Kennedy who has about twenty years experience. He did not testify.
14 GMF purchased the present farm site on Heron Road in 1993. It had formerly been the site of a business which manufactured antennae and radar equipment and then of another business which manufactured car parts. There was an industrial building on the property when it was purchased and GMF constructed others. The site now looks like a medium sized light industrial complex.
15 GMF bought the property for 1.1 million dollars and has invested another 3.1 million in capital improvements and brought to the site another million dollars worth of heavy equipment to move the compost.
16 Mr. Snobelen is an experienced mushroom farmer. He learned the business while an employee of another large operator and started his own farm in 1979. For fifteen years he has been on the board of directors of the Canadian Mushroom Growers' Association which is a national voluntary association of mushroom farmers. Mr. Snobelen has organized seminars for the mushroom growers including one on composting which was held at another mushroom farm he operated on Brock Road in the Town of Pickering.
17 Mr. Clay Taylor has had experience in composting at various farms going back to 1983.
18 The mushroom farm operates mostly indoors.
19 The composting operation starts outdoors as what is called phase one. During phase one they make compost or substrate to feed the mushrooms
20 During phase one composting the operation takes place outside on a cement slab measuring about 620 feet by 92 feet. To prevent run-off from escaping the slab is surrounded by an earth berm which is about 20 feet wide and 8 feet high. When the compost leaves phase one it goes into a tunnel building which is 166 feet long and over 60 feet wide and from there to other buildings where different stages of the growing take place.
21 The phase one composting uses a number of ingredients: hay, straw, ground corn cob, stable bedding, chicken litter, agricultural gypsum, urea, dried grains and cocoa oils.
22 All the materials except gypsum are mixed in pre-wet piles for several days to initiate microbial action. Then the material is put through a compost turner which piles and shapes the material into ricks which are 7 feet wide, 7 feet high and 200-250 feet long. The photographs showed three such ricks. Every other day the material is turned and periodically it is wetted.
23 The goal of the phase one operation is to keep the process aerobic. If the process becomes anerobic then, as Mr. Snobelen explained, the process becomes like a sewer process and produces methane or sewer gas and also what is commonly known as rotten egg gas. Even when the process is aerobic it always has the potential of producing odours. One of the gases produced is ammonia.
24 Mr. Snobelen explained that an experienced operator can tell if the process is going anerobic by the odour and because the rick will change from a chocolate colour to an orange.
25 Mr. Snobelen said that odours should leave the site only very infrequently if the process is kept aerobic. He said that when the compost is ready to leave phase one it has an odour that the industry calls "flat and sweet" or like "a pond on a warm April night". He acknowledged that the descriptions the plaintiffs gave at trial were not consistent with that description.
26 GMF uses what is called the Pennsylvania formula to determine the amounts of the ingredients and it is Mr. Snobelen's experience that this formula is less likely to produce odours than other recipes.
27 Mr. Snobelen describes composting as both an art and a science. He said that the other large farms use generally the same process for phase one composting. Mr. Snobelen said he knew of no farm that did the phase one composting in a building.
28 He said GMF did use a different formula when it first started in 1994 when they used a formula slightly different from the Pennsylvania formula.
EVIDENCE OF THE DEFENCE ABOUT ODOURS
29 I have considered all the evidence but shall summarize only the evidence of the main defenses witnesses concerning the odours produced by GMF.
Mac Snobelen
30 He testified that GMF started its operations on Heron Road in about October 1994. Within a month it was receiving complaints. Mr. Snobelen and Mr. Clay Taylor discussed them and did some soul searching.
31 Near the end of November 1994 a group of neighbours came to the plant complaining of odours.
32 On December 21, 1994 the neighbours called the fire department whose firefighters arrived wearing gas masks. Mr. Young called Mr. Snobelen at home complaining of a cloud of poisonous gas. Mr. Snobelen drove to the farm and saw many fog patches along the route but none on Heron Road.
33 On January 29 and 30, 1995 an employee of GMF recorded an odour. At about the same time Mr. Snobelen received a note of a complaint from Mr. Pyke. Mr. Snobelen drove along Heron Road and noticed an odour in some locations. Mr. Snobelen did not describe this odour but it obviously caused him concern because he instructed Mr. Don Van Dusen to monitor for odours. GMF did not have a system of recording complaints until this point.
34 During his examination in chief Mr. Snobelen left me with the impression that he felt the complaints of the neighbours in December 1994 and January 1995 were unfounded; however, in cross-examination he was asked if he agreed that the farm had an odour problem during the start up period while they were experimenting with the formula and he said yes. He said the problem lasted until about the end of March 1995. He agreed that the complaints of the neighbours might well have been justified during that period.
35 Mr. Snobelen said they changed the formula between January and March 1995.
36 On two occasions Mr. Snobelen had his staff go to check out complaints and received back reports from Mr. Clay Taylor and Mr. Van Dusen that they had attended the areas of complaint and found no odours.
37 In the summer of 1995 GMF planted over 500 white cedar trees on the berm as a green screen. These were planted by Mr. Snobelen on the advice of an expert who thought they might reduce the odour complaints. They also installed a wall made of bales of straw to create a windbreak which Mr. Snobelen said he felt was very beneficial in reducing the distribution of odours. Mr. Snobelen also investigated the possibility of using gortex to trap odours.
38 Mr. Snobelen said that all the changes made by GMF in response to the odour complaints took place before 1996.
39 Mr. Snobelen said that he "recognized the problem we were having" and consulted Dr. Rinker for professional advice and then started a research project to develop a method of objectively measuring odours.
40 He said that he thought that by the end of March 1995 they had reduced the incidence of the odour problem by 80%. This is not consistent with the evidence of the plaintiffs.
41 Exhibit 35 is a very significant document. It is a memo signed by Mr. Snobelen and several of the defendants including Mr. Clay Taylor. It states that:
* they recognized that in November-December 1994 the odours were creating an annoyance for the neighbours.
* they decided to make aggressive changes to reduce the frequency, volume, duration and distribution of odours
* they changed the formula by eliminating 50,000 pounds of chicken litter each week
* their monitoring indicated that they had reduced the "annoyance factor" by 80-90% by May 1995
42 Mr. Snobelen said that if the composting operation is conducted properly odours would leave the farm property only occasionally and then only in pockets. He called them pockets to explain how at any particular time one person might smell them and another person down the road might not.
43 Mr. Snobelen also described the experience with odour complaints at his other two locations. At the Brock Road site he said he had two or three complaints in nine years. At the Paddock Road site he had two complaints. He said when he received a complaint at the other location he attended personally to investigate and never found a problem. He stopped the composting operation at Brock Road in 1994. He said there were about 6 or 7 homes within a kilometer downwind from the Brock Road site and about 13 or 14 at the Paddock site. I heard no evidence from any of those neighbours.
Mr. Clay Taylor
44 He said the farm uses 360-390,000 pounds of dried material a week for composting. The hay and straw comes from 4-5,000 acres of land elsewhere, poultry litter comes from a number of farms and the stable bedding comes from 15 stables. As I understood it, stable bedding refers to the straw and manure cleaned from horse stalls. All this material is trucked to the Heron Road site for composting.
45 Mr. Taylor described in some detail the changes made before 1996 in response to the complaints. One of them was to turn the piles more often. He acknowledged that the earlier procedures had allowed ricks to go anerobic and to produce a rotten egg smell. He also said the various changes they made did not affect the usefulness of the compost. He did not explain how the process compared to that used elsewhere including the other farms operated by Mr. Snobelen.
46 Despite this testimony he said the odour in December 1994 (which was before the changes) was a "wet hay smell" or like "walking into a freshly planted greenhouse".
47 He also explained that in the spring of 1996 the farm purchased a pre-wet machine which enabled them to reduce the length of time the compost remained outside. He did this to reduce odours. This took one third of the material off the concrete slab. There was no evidence as to whether such a machine was available before that time or whether such a machine was used by other operators in Canada.
48 Contrary to the testimony of Mr. Snobelen and Exhibit 35, in his testimony he denied that the composting formula had been changed "except slightly". He described the composting formula as being the same since the opening of GMF except for "minor tinkering". Yet again in contrast, there was evidence that he wrote Mr. Snobelen a memo in February 1995 (Exhibit 38) stating that the amount of chicken litter had been reduced by 50,000 pounds a week. Again, in contrast, he wrote in Exhibit 40 that he had told Mr. Pyke that the farm had made "wholesale changes" to the composting formula.
49 Again in contrast to the gist of his testimony belittling the plaintiffs' complaints, he said on cross-examination that he felt there was some legitimacy to the plaintiffs' complaints in late 1994. Yet again in apparent contrast, he said that when the operation started up in 1994 he never noticed any smell and that his attention was only drawn to the issue when the neighbours complained. He testified that he had never experienced any nausea or sickness while working around the slab. He denied he had ever smelled ammonia around the slab. This appeared to me to conflict with the evidence of Dr. Beyer and Dr. Rinker who said that ammonia was a common product of composting and could be detected by someone working on the rick. Mr. Taylor said there were no unpleasant smells associated with the ricks except the rotten egg smell when it turned anerobic and he said this odour quickly dissipated by which I understood him to mean that it would not leave the site. Again in contrast, he wrote in Exhibit 38 that the reduction in the amount of chicken manure had "significantly reduced the odour" and "will certainly reduce the odour problems our neighbours have been experiencing".
50 He testified that the operation had only produced anerobic smells on four occasions since 1994 and this was caused by excessive rain or snow.
51 He said the vapour given off by the ricks was quickly dissipated and he never noticed any odour from it.
52 He also wrote Exhibit 39 which acknowledges that in late February 1995 there was an unusual amount of turning which produced some anerobic odour. Interestingly, he noted that while Dr. Rinker had been on site that day the odour did not appear until about an hour after the visit.
53 He said that he had never had a complaint at the Brock Road site. He said the complaints by the plaintiffs here were out of the ordinary and were the first he had experienced in his farming work since 1978.
Mr. Brent Taylor
54 He purchased the home of the plaintiffs, Mr. and Mrs. Pyke, in the spring of 1997 and moved there in the fall. He testified that since he has lived there he has noticed an odour only very infrequently - once each one or two months. He described the odours as being like wet hay. He denied ever smelling an odour which was nauseating, putrid or which he would describe as a stench or like ammonia. He never noticed an odour in the house.
55 He said the odours had never interfered with his enjoyment of the pool or the hot tub he had installed. In September 1998 he held a large garden party.
56 He also explained that he purchased the property with the help of GMF. He works at GMF and is the brother of Clay who is in charge of the composting. He said he spent many days working on the composting slab when the farm started up and he never smelled a pungent or rancid smell.
Dr. Rinker
57 He is an associate professor of agriculture at the University of Guelph and has done field work with mushroom farmers both as a professor and previously as an employee of the Ministry of Agriculture and Food. He has visited all the mushroom farms in Ontario.
58 He testified that when he attended at GMF in December 1994 he noticed normal composting odours at the farm gate. He described them as being sweet. He made a similar observation on a second visit.
59 On some occasions in February 1995 he noticed a sulphur smell when the rick was turned. He also noticed an unpleasant odour from the poultry litter. In February 1996 he noticed stable odours and a strong odour of ammonia. When he was recalled to give further testimony he testified that the ammonia smell from composting dissipates quickly and that it should not be a problem off site.
60 In October 1998 he noted the smell of poultry litter and also sulphur compounds the smell of which he likened to a sewage treatment plant but he also said the smell did not carry. He said that in March 1999 he was south of the railway tracks on Heron Road and smelled composting odours which smelled a bit off to him - he described them as a blend of prewet but also as having a sulphur odour.
Mr. Donald Van Dusen
61 He has been working at the site since 1994 and in 1995 began keeping a daily log. His basic method was to open his car windows on his way to and from the farm each day. He said he noticed a sharp or pungent odour on only a couple of occasions between 1995 and trial. He generally worked inside the farm buildings.
62 His log shows that on most days there was no odour detected.
EVIDENCE OF THE PLAINTIFFS ABOUT ODOURS
Christopher and Christa Downes
Background
63 They live about a mile to the south on Myrtle Road. They cannot see the GMF from their property.
64 They purchased their property in 1981 or 1982 and own a house on just under an acre of land. They spent a considerable amount on renovations over several years before the GMF arrived. They have a deck and pool.
65 He is away at work during weekdays; she is at home with the children.
66 Before the GMF he only noticed odours when a farmer fertilized and this would only last a day or so; all she remembered was the smell from the hog farm which she said was also unpleasant but lasted only a day.
Effect
67 He recalls he first noticed the GMF odour in January 1995.
68 He describes the odour as being like a septic tank and like ammonia. She describes it as being like urine. She said it takes her breath away and sometimes she has to hold her breath. She also says it burns her eyes.
69 He gave estimates of the frequency of the odour ranging from once or twice a week to four times a week. She estimated it occurred two or three times a week. They both said it tended to occur in the morning or at the end of the day. They said it lasted from thirty minutes to four days. It is not present all the time and sometimes a week goes by without any odours. The intensity varies. She thinks the smell is increasing. He says it is not as bad in winter.
70 They used to eat most of their meals outdoors in summer but now cannot use their deck and pool on some days. They find they have to close the windows and use their air-conditioning more. They used to walk north on Heron Road but the odours are worse there and so they have curtailed their walks. She has curtailed her gardening. She found it difficult to get the children to go outside.
71 They only started to keep a log in 1998. She made most of the entries and she said her entries were not consistent or accurate. The diary showed many fewer incidents than they described.
72 I generally accept their testimony and find they notice odours about two or three times a week on average.
Margaret Davis
Background
73 She is a widow and retired. She and her late husband bought their 100 acre property in 1957. It is roughly 4000 feet south of the GMF.
74 They operated the property as a farm for about 12 years and in the 1970's they sold off eight lots of 10 acres each and kept 20 acres and the stone farmhouse.
75 Before the GMF she noticed odours from cattle and horses on other farms and also odours from the hog farm but said they were not objectionable.
Effect
76 She said that in her 41 years on the property she has never smelled anything so dreadful, objectionable and repugnant as the odour from the GMF.
77 She described the odour as varying and described it as odour, rotten eggs, putrid, stink, rank, and nauseating. She said it did not smell like anything she had ever smelled before.
78 She said the odour occurred roughly every day or two and lasted from 15 minutes to several days. There were some conflicts between her testimony at trial and on discovery but I accept her explanation that this was because she did not review her diaries before her examination. She kept a log on almost a daily basis since July 1995. I found her logs to be more accurate than her independent recollection. They constitute past recollection recorded.
79 She said that the odour has caused her to curtail her gardening and said sometimes it is unbearable outside. She has curtailed the use of her glassed-in porch. She says the odour permeates her house. She has no air conditioning and has to close her windows. She walks her dog less. She stopped hanging out her laundry. She dreads holding the annual outdoor church service on her property because she receives many complaints about the odour. She does not plan outdoor activities with her friends because she can't predict when the odour will occur. Her guests sometimes complain of nausea.
80 She said there is occasionally a white haze or fog which she believes is from the GMF. At one point she said it did not smell and later said that it has the smell closest to ammonia.
81 She said her eyes are constantly sore and running and she feels nauseated on occasion.
82 Although there was some confusion in her diaries they are very detailed and I find them to be reasonably accurate. I find that she fairly described her experiences. Her length of residence and her former experience of living on a working farm make her evidence compelling. Her length of residence and exposure to local weather conditions make her observations, in conjunction with those of other plaintiffs and Dr. Rinker, compelling evidence that the GMF produces white haze on occasion which travels to the plaintiffs' properties.
83 Her evidence indicated that the odour has been much the same since the summer of 1995.
84 I generally accept her testimony.
Sally and Kenneth Giles
Background
85 In 1977 they purchased 99.8 acres and an old stone farmhouse on Heron Road. They are about 4000 feet south of the GMF.
86 They carried out renovations which more than doubled the size of the house. They invested about $350,000 in improvements to the property before the arrival of GMF.
87 They originally intended to farm the property. They had horses and attempted to revive the 60 acre orchard but gave up after three years. They now lease most of the land to a farmer who grows soya beans and corn.
88 Mr. Giles works in Toronto in the daytime. Mrs. Giles is usually at home except when she works at the Thunderbird Golf Club in golf season.
89 They both said that before the GMF they were not bothered by any odours including those from neighbouring farms including the hog farm.
Effect
90 Mrs. Giles began keeping a log on almost a daily basis starting in January 1995. It is a very detailed document and because of it I give great weight to her testimony.
91 She said she started noticing the odours from the GMF in October 1994. She said initially they were extremely strong and lasted a long time. She said the odours have varied in frequency, intensity and duration. As with all the testimony on the subject of frequency it is difficult to summarize her evidence. Generally, she indicated the odours occurred several times a week although there were days and even periods of a week or more when she noticed no odours. Sometimes the odours lasted all day and occasionally for several days. She associated them with a north wind. In contrast, Mr. Giles thought they were worse when there was no wind. She said she had smelled the odours as far away as Ashburn and the golf club.
92 Mr. Giles testified that he could not notice any change in the odours over the years. Mrs. Giles' logs generally support that observation.
93 She described the odours as: decaying animals, cow manure, musty, rancid, nauseating, sulphur smell, sickening, rotten shrimp or fish, putrid, rotten manure, overpowering, really obnoxious, sickeningly sweet, very offensive.
94 Mr. Giles grew up on a mixed farm where they kept livestock. He testified that he was familiar with farm smells. He said he does not find chicken or hog manure objectionable and has spread manure on fields on the family farm. More recently he has kept horses. He described the GMF odours as being nauseating and like rotten flesh. He said he has only smelled something as bad two or three times in his life.
95 Mrs. Giles had observed a haze which she associated with the GMF on two occasions. She had taken pictures of it. She said it had an ammonia odour. Mr. Giles said he had seen the haze many times and also said it had an ammonia smell. He said he traced it to the GMF.
96 They described no health effects other than temporary nausea and temporary difficulty breathing and stress.
97 They said that the odours permeated their house, vehicles and clothes and people had made remarks to Mr. Giles at work about the odour carried in his clothes. They had to install air conditioning. Mrs. Giles likes to garden and finds this difficult and sometimes sickening because of the odours. Because of the odours they stopped going for daily walks along Heron Road.
98 They stopped entertaining outside in the summer. They did not put in their planned patio. They stopped hosting parties for the sports teams that Mr. Giles sponsors. He stopped spending as much time outdoors playing sports with their sons. He stopped entertaining business clients. Their friends who were interested in astronomy stopped coming to look at the stars.
99 Mr. Giles said they felt like their lives were restricted to being indoors since the GMF came.
100 There was an incident when Mr. Giles made some heated remarks to Mr. Snobelen. He also contradicted some of his evidence on discovery where he said the haze had no smell. I find he tended to exaggerate especially about the frequency of the haze. I accept his testimony about the comparison of the GMF odours to other farm odours. Where his testimony conflicts with that of Mrs. Giles I accept hers. I generally accept her testimony.
1094581 Ontario Limited
Background
101 This corporation purchased a number of lots in a subdivision from Mr. and Ms. Frankovich. They own the shares of the corporation.
102 The lots are located about 2600 feet northwest of the GMF off Townline Road. The couple purchased the land in 1987, had a plan of subdivision registered in 1990 and sold the land to the corporation in December 1994 which was after GMF arrived. The plan of subdivision was not approved by the Town of Whitby but was approved after an appeal to the Ontario Municipal Board.
Effect
103 The lots had been for sale before and after the transfer to the corporation but none sold. One offer was received in 1998 but was rejected as too low. Mr. Frankovich is not a professional developer but said he knew there was a downturn in the market in the period 1990-95. He was not in a position to say why the lots had not sold.
104 Mr. Frankovich lives in Whitby. He visited the lands only about five or six times a year. He had noticed an unusual smell once when he was driving in the area but has never noticed an odour while at the subdivision.
105 I generally accept his testimony but it did not establish the reason why the lots have not been selling. That, of course, is a matter relating to damages and on that issue the evidence is not closed.
Gordon and Karen Donnison
Background
106 They purchased 9.88 acres in 1987, built a house and moved to the property in June 1988. They are about 5200 feet south of the GMF on Myrtle Road.
107 Mr. Donnison worked as a firefighter until he retired about 6 months before trial. Mrs. Donnison has always worked as a dietician except for three months when she was home recuperating from an accident.
108 Their property is across the road from the Thunderbird Golf Club and adjacent to farms and a dog kennel. Before the GMF Mr. Donnison said the air was fresh which was one of the reasons they moved there. He said on about three occasions he had noticed a strong smell from the pig farm but it lasted less than a day.
Effect
109 He first noticed the GMF odour in January 1995. He identified it because he had previously smelled the GMF operation on Brock Road where his son had worked for a time.
110 They described the smell from the GMF on Heron Road as gross, rancid, ammonia, smelly feet and dead animals, sulphur, decaying animals. The degree of odour varied. Mr. Donnison said he had only once in his life smelled anything like it and she said the odour was ten times worse than anything she had smelled before.
111 They said it was sometimes associated with a north wind but sometimes came when there was no wind. They said the odours lasted as little as thirty minutes and as long as a day. They both kept some notes on calendars but these were not regularly kept, were not in consistent terminology and were sometimes based on hearsay. There were a great many more notations in some years than others. They were both away from home during the day on workdays. I find their logs were not very reliable. Based on their testimony and logs it is difficult to summarize the frequency of odours they experienced but I find it was generally about a few times a month from November to March and about one to three times a week from April to October.
112 In terms of physical effects they said the odours sometimes made them feel like puking, took their breath away, caused itchy and stinging eyes and running eyes and noses. Mr. Donnison also said he got headaches and periodically wore a face mask when he worked outside.
113 Because they were away at work in the daytime, the odours mainly bothered them at night and on week-ends and on holidays. Mr. Donnison is now at home in the daytime since he retired. They have no air-conditioning and were often hot because they had to keep their windows closed. When the windows were open they were occasionally awakened at night. They occasionally had to put their hands over their faces and run from their vehicles to the house. Mr. Donnison likes to garden and build projects outside and occasionally had to interrupt this activity or do it while wearing a mask. Mrs. Donnison said the odour interfered with doing barbecuing and that they couldn't entertain outside because they did not know when the odours would occur. Their children and grandchildren sometimes came in from play complaining of the odour. I note, however, that despite the odours Mr. Donnison personally installed an outdoor pool in the fall of 1998.
114 Mr. Donnison had observed a white haze on two occasions. He had also seen it when he drove by the GMF.
115 I generally accept their testimony.
Leslie and Donald Walker
Background
116 They bought their 10 acre property and house in June 1985. It is about 2700 feet south on Heron Road.
117 They both work as court reporters but do some of their work at home.
Effect
118 Before the GMF they noticed no unpleasant odour except once or twice a year there was a strong smell from the hog farm which lasted a day. He said some years it lasted four to five days.
119 They kept few notes of their observations.
120 She first noticed the odour in December 1994. They described the odours as pungent, acid tone, like an outhouse, ammonia, sour, putrid, rotten vegetables. The intensity varied.
121 The frequency also varied. Because of their being away at work and of having their windows closed in winter, it appears they noticed the odours each couple of weeks in winter and several times a week in summer. When Mrs. Walker was home toilet training a puppy one summer she said she noticed some odour each day.
122 The odours interfered with their gardening, and occasionally made them come in from their deck. They occasionally had to cancel a barbecue and on one occasion cancel their child's party. They have no air-conditioning and when they had to close their windows in summer their house became very hot. One day it reached 37 degrees. The odour would awaken them at night. The heat in the house interfered with their sleep and led to fatigue. Sometimes they had to go elsewhere to do their homework. Sometimes the odours permeated their house. Sometimes they would go for a drive to get away from the smell. They were frustrated because they could not predict when the odours would occur and would have to adjust their timetables to the odours.
123 Mrs. Walker experienced headaches, and burning eyes. He experienced irritation in his nose.
124 They had seen a haze a number of times. Mrs. Walker saw it come directly from GMF and envelop the Gardner property.
125 I generally accept their testimony.
Ronald Chapman
Background
126 He lives alone on his 10 acre property which is about 3000 feet south on Heron Road. He purchased the property in about 1990.
127 He drives a truck in the sand and gravel business and is away from home from about 3:30 am to 5 or 6 p.m. during the week.
128 Before the GMF the only unpleasant odour he noticed was when the pig farm put manure on the fields. This lasted a day or two. He said he had been around farms all his life and could distinguish different types of manure.
Effect
129 He described the odours as sickening, ammonia and like a mixture of urine, rotten hay and horse manure.
130 He kept very few notes. He said sometimes there was no odour for 3 or 4 days.
131 He said that because of the odours he did not sit outside much in summer, and restricted the use of his pool. It sometimes wakes him at night. He said his dogs bring the odour into the house. It bothers him when he cuts the grass.
132 He said that because of the odours sometimes he can't get his breath, he has to breathe through his mouth and his nose runs.
133 He said he had seen the haze from the GMF.
134 I generally accept his testimony.
Bernice and Jean Gardner
Background
135 Bernice Gardner and her husband purchased their 100 acre farm in 1940. It is about 1300 ft south on Heron Road and across the road. The GMF is within view. She is retired and it was apparent that time is taking its toll on her memory and concentration.
136 She and her family operated the farm for many years. They kept chickens, pigs, goats, horses and cattle. Her husband died in 1993.
137 Before the GMF she did not have any problems with odours except for a day or two a year when the farmers cleaned out their barns or occasionally when the pig farm cleaned out its tanks.
138 Jean Gardner is Bernice's daughter. She was born on the farm and has lived there for all of her 46 years. She has not worked since 1994 and so is home with her mother most of the time.
139 She said that before the GMF there were no odour problems. She said there were just odours from livestock manure and about two or three times a year odours from the pig farm. She had never complained about the operations of the industrial firms who had occupied the GMF site previously because they did not stink.
Effect
140 Bernice Gardner kept few notes and they did not appear to be too reliable.
141 She had worked on her farm and in her barn when they had livestock. She said the GMF odours were quite different from barn smells. She was asked how the GMF odours compared to the odours from the hog farm and said they were pretty hard to describe; they were both bad and both plain stinked.
142 Bernice Gardner said there were periods when there was no odour but that the odours generally came from the GMF about one to seven days a week. She associated them with a northwest wind.
143 She described the odours as being like ammonia or rotten meat and as bad, terrible and unbearable stenches.
144 Jean Gardner had previously worked in a factory with a variety of paints, solvents and other chemicals. She compared the odours from GMF to those chemicals. She said the GMF odours were worse than the pig farm odours. She described the GMF odours as putrid, raw sewage, foul, ammonia, rotten cabbage, like a house full of javex, obnoxious and horrific.
145 Bernice Gardner said the odours permeated her glassed sunporch, woke her up and caused her to curtail her walks.
146 Jean Gardner kept extensive logs but she changed her format and terminology from time to time. Sometimes she stopped making notes. Often she was only recording more intense odours and so the notes do not record all the occasions when there were odours. On the basis of her testimony and her logs I am satisfied that there have been periods when they have been exposed to offensive odours for many days at a time. While the frequency has varied significantly I find that they have been exposed to odours about half the days in each month.
147 Jean Gardner said that because of the odours she no longer liked to sit outside, she had to interrupt her gardening, she had stopped walking her dog, and had to keep the windows closed. She said that on several occasions they had to cancel or cut short campfire parties, corn roasts and a family reunion. She said her relatives used to come to camp on the farm for their holidays but had not done so since 1995. She said she felt like a prisoner in her own home. She said the odours permeated her house. The odours are unpredictable.
148 Before the arrival of GMF she had various allergies and was on a disability pension because of sensitivity to various industrial odours. She was allergic to the scent of perfume. Before the arrival of GMF she was being treated for depression.
149 She said because of the GMF odours she felt her depression and allergies had become worse. She said the GMF odours made her feel nauseated, burned her eyes, gave her a sore nose, gave her headaches, and a sore throat. She said she had trouble sleeping. She has a window air-conditioner in her bedroom but can't turn it on when there are odours.
150 Bernice Gardner said she had seen haze from the GMF.
151 Jean Gardner said she had seen and made notes of the haze on numerous occasions and twice taken photographs which are exhibits. She had observed it come from the GMF. On one occasion she said she saw the cloud start from the area of the compost heap and move slowly and then pick up speed and veer off in different directions and eventually dissipate. She described it as thick and white and said it occasionally obstructed her view and on occasion enveloped her house. She said she had no difficulty differentiating it from natural fog or mist and had never seen it before the GMF arrived. She also said it smelled like ammonia. She called it the ammonia cloud.
152 There was testimony about an incident involving Bernice and Jean Gardner and Mr. Clay Taylor. I find that evidence does not significantly weaken the credibility of Bernice and Jean Gardner whose testimony I generally accept.
153 I find that Jean Gardner tended to exaggerate the intensity of the odour and that she did so because she was becoming increasingly frustrated by its effect on her life. I find that the odours have substantially affected the lives of mother and daughter and that they are the most affected of all the plaintiffs.
154 I also find that Jean Gardner is unusually sensitive to odours. There is no medical evidence about the effect of the odours on her depression or allergies but I accept her testimony that the odours have substantially increased her feeling of unwellness from both. I accept her testimony about the haze.
Patricia and Craig Pyke
Background
155 They purchased their property in 1988. It is about 2000 feet immediately south of the GMF. Mrs. Pyke is a homemaker and Mr. Pyke is away during the daytime at work.
156 They sold their property and moved away in September 1997 because of the odours.
157 Before the GMF she said the only odour was that from the pig farm which occurred two or three times a year. He said on discovery that this odour occurred about monthly but this conflicts with all the other testimony of the various witnesses on the subject and I find that they noted the pig farm odour only about two or three times a year.
Effect
158 They first noticed the odours in about October 1994.
159 They described them as a terrible stench, sickening cheesy smell, nauseating, an outhouse, having one's face buried in feces, very pungent, very objectionable, worse than the pig farm, ammonia, unbelievably terrible. They varied in frequency, duration and intensity. Mrs. Pyke said they varied from tolerable to absolutely obnoxious.
160 Mrs. Pyke kept exceptionally good logs beginning in November 1994. Her format and terminology varied, there were gaps and as time passed her descriptions became exaggerated; however, I find her logs are generally very reliable.
161 There were days and sometimes whole weeks when there were no odours. Sometimes the odours came and went more than once in a day. Interestingly, she frequently noted that there were occasions when she detected the odour at some places on her property and not at others or that it was noticeable on a neighbour's property but not on hers. Her logs show a long span of very high frequency in the period from December 1994 to June 1995 when Mr. Snobelen said he thought the neighbours' complaints were justified. There was no pattern to the occasions of odour. However, a common sequence was for a period of days of little or no odour followed by several days of intense odour. Sometimes there would be a week or two without odour. Sometimes the odour would last for four to seven days or more. It is difficult to summarize but generally I find on the basis of her testimony and logs that there were offensive odours on average more often than one day in three over the period to September 1997 when Mrs. Pyke stopped keeping logs. They were the second most affected after the Gardners.
162 Interestingly, Mr. Pyke said he visited the GMF on three occasions and on no visit did he notice any odour.
163 The odours had a dramatic impact on their lives. They were both very enamoured of their rural property. They were used to walking up the road four times a week and had to curtail this although they did not stop. They had to curtail their gardening and work outside, keep their windows closed more often, were awakened at night and kept awake. They restricted the times they sat outside or ate outside. The smell permeated their clothes. On bad days the smell permeated their house and some days they could not go outside at all. They were embarrassed when visiting tradesmen and guests complained; it spoiled their parties - sometimes their guests ran from the house to their cars. It caused them to stay inside during holidays and vacations. They cancelled their annual hockey game. She said they felt like prisoners in their home.
164 The following selection of quotations from her log conveys her perception of the impact of the odours. She refers to GMF as "Mac".
July 22, 1995 - S. drift all day & night. First time I can remember when it did not smell all night & we had our windows open.
September 14, 1995 - Terrible smell 7:30 am. Smell not terrible far too nice a word. Same smell if you were held upside down 1" away from excrement in an outhouse used by 400 people. Could not stay outside to garden for more than 1 minute. 8:27 am have sore throat now as smell permeates house. The smell at midday was pig farm as they were spreading. We have learned to tell the difference between mushroom & pig farm. Smell early morn and late evening - Mac.
February 15, 1996 - calm a.m. to N. woke up with sore throat from smell - could smell Mac in every room in house. Outside the smell was unbelievable 6:30 am. Mac still smells 8:27 am. I went to plan some landscaping but feel I can't as long as the stink continues. Mac has truly taken the pleasure out of our property. Right now there is a gentle snowfall outside with the sun breaking through, but because of the smell I will not go out to walk in it. 4:30 p.m. Still smelled when I got home tonight. 9:30 p.m. still stunk.
March 12, 1996 - calm 5:00 am. The absolute worst smell in the house yet. All rooms smelled ... 7:21 am took pictures of fog .... Could hardly breathe outside ... wind swung around to S. in the p.m. Took more pictures outside. Had my usual sore throat. Smell did not leave house until the afternoon. Calm to N drift. Had the Bridge group over in the evening. They could not believe the smell when they left. It was vile. When we went to bed the house was already smelling inside again. Craig and I feel embarrassed when we have people over and our home smells so badly.
April 18, 1996 - Calm. Smelled Mac in the night. Thought of getting up & reading but I could smell Mac in the family room. Had a sore throat when I woke up. Without thinking, I thought of going out with the cat this morning (it is the first beautiful spring day after 5 long months of winter) but when I went out I was hit by an incredible stench. I realized then that it had smelled all night and morning.
April 19, 1996 - Calm. South drift. No smell. 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, was indescribably wonderful. How wrong it is that Mac could just move in and take all this away from us.
July 1, 1996 - N drift. A spectacular Canada Day. Craig & I got our morning coffee & chairs together & went out on the deck to enjoy the beautiful morning. 8:42 am. We had to turn around and come right back in & close all the windows because of the horrible stench.
July 17, 1996 - N Wed. Start of Craig's week off. Smell brutal in the am. Had painter to house & he commented on smell.
July 19, 1996 - We are worried about tomorrow as we are having our family picnic and 30 people coming. Winds predicted to swing around from N tonight.
July 20, 1996 - Sat - Family Picnic - winds from N & smell brutal. 9:00 a.m. terrible whiffs all day. Guests all noticed. My sister could not believe that invasive stinking industries like Mac were still able to exist in a residential area and offered to help us fight Mac in any way she could.
July 21, 1996 - Sunday - Craig still on holidays - the broccoli is ready & he is sitting outside preparing it to be frozen in a horrible stink. It is definitely affecting him & his holiday thus far has been very negatively punctuated by Mac's stink - I think we will never get used to it - we will either win and Mac will compost off sight or we will have to sell.
July 23, 1996 - Awakened by stink at 1:04 am & had to get
up to shut window (calm). It is a beautiful summer day - the last day of Craig's holiday. It has stunk most of
the afternoon (that terrible cheese smell) I have finally
come inside as I cannot stand the stink any longer on the
deck. Both Craig & I are down and depressed. 9:01 p.m.
going to bed early - it stinks outside - it's basically
stunk all day. Will have to leave our windows closed.
It smelled 4 days out of 7 of Craig's holidays working
around the house.
August 29, 1996 - Stench woke me up last night at 3:36 am. I was stupid enough to leave my window open as it was a full moon & and a beautiful night and I wanted to hear the crickets. I had to cover my nose with my sheet until the stink left the room (I was in the spare room) It stunk this morning when Craig left. Still smelled 8:20 am. Mom and Ethel are coming for tea so I'm just hoping. 9:16 am waiting to go out to garden but the stink is totally nauseating. 9:56 am still stinks but I have to go outside. It smelled all day. Mom and Ethel came for tea & we endured it as long as we could.
August 31, 1996 - Got home from wonderful evening at Paxton's with moon rising over the pond - Beautiful night. Stink unbelievable here.
165 The odours gave them sore throats and affected their breathing. Mrs. Pyke occasionally "had a good cry" and they both became depressed about the impact on their enjoyment of their home. Eventually they decided they could not tolerate the odours any more and sold their property in March 1997 and moved in September.
166 They had both seen haze on several occasions. She recorded it in her logs. They took photographs which are exhibits.
167 I generally accept their testimony.
Gary and Erlyne Young
Background
168 They purchased their 10 acres in 1973 and built their house. They are about 3300 feet south on Heron Road. He works away from the home and she works outside the home about two to four days a week.
169 Before GMF the odour they noticed was that from the pig farm which came a couple of times a year.
Effect
170 They first noticed the odours in the fall of 1994. They said they varied in intensity, frequency and duration. Sometimes there were none. They described them as sometimes mild like manure. When they were strong they were rancid, nauseating, pungent, ammonia. The odours were worse than those from the hog farm which never wakened them. Mr. Young said he had only smelled one other smell in his life which was as bad as GMF and that was when he visited the stockyards and smelled the container where they stored blood.
171 The odours caused them to keep their windows closed and they had to install air-conditioning. The odours wakened them and kept them awake. Mr. Young started to take sleeping pills. They interfered with their barbecues, gardening, and entertaining. They cancelled his annual staff picnic and she stopped hanging her laundry outside. At times they found it difficult to breathe and had to hold their breath and run to their car. They bought a mobile home to get away. Their dog brought the smell inside.
172 Mrs. Young said the odours burned her mouth, nose and eyes. He said the haze made it particularly hard to breathe.
173 He had seen haze on several occasions and took pictures which are exhibits. Once the haze was so pungent he called the fire department. He said he was able to distinguish the haze from natural fog.
174 Mr. Young kept occasional logs. They contained virtually no detail and did not always specify where the odour was observed. Generally, the logs were not reliable. While it is clear that the odours can appear in one place but not another at the same time, I find that his recordings exaggerated the frequency of significant odours.
175 I find that when they were home they experienced odours with about the same frequency and intensity as Mrs. Davis.
176 I generally accept their testimony.
ISSUES
1. Does the phase one composting on the mushroom farm produce
offensive odours?
177 I find that there is no doubt that the composting process produces offensive odours. In addition to the testimony of the plaintiffs I rely heavily on the opinions of Dr. Rinker, an expert called by the defendants. He is now on the staff of the University of Guelph and was formerly an employee of the Ministry of Agriculture and Food. He visits every mushroom farm in Ontario. He was one of the most qualified academic and field experts called at trial.
178 He adopted as his opinions the following passages from his writings:
Phase 1 compost preparation procedure and/or site is becoming a significant issue world-wide. Traditional compost preparation may generate odors that are offensive. This fact has prompted some countries and municipalities to legislate emission levels. Consequently, a new system of compost preparation is developing rapidly. Since the new procedure is not fully tested or adopted at the farm level, mushroom farms have had to relocate their composting areas up to 160 km from the production site. Thus, anyone considering constructing or purchasing a mushroom farm must be especially cautious in choosing the site for compost preparation. Rinker, Commercial Mushroom Production, publication 350, Queen's Printer for Ontario, 1993 at p. 8
Composting odours continue to present a problem for mushroom growers, especially those who compost in locations which are in proximity to areas zoned for residential purposes. Duns, Ripley, Kingsmill and Rinker, The Analysis of Mushroom Composting Odours, Mushroom World, June 1997, at p. 58.
Offensive odours produced during Phase 1 composting continue to pose a problem for many mushroom growers. While remedial measures have been proposed for the reduction of composting odours, the lack of a universal solution to the problem remains a challenge to the industry. Duns, Ripley, and Rinker, Off-site Detection of Odorous Compounds Produced by Phase 1 Composting, Mushroom World, vol. 9, Issue 4, 1998 at p. 13
179 I accept his opinions on this issue except that I should add that the evidence of all the witnesses in this trial shows that there is no "new system" in view which will solve the problem. The evidence establishes that GMF uses the most modern and customary procedure and still produces offensive odours on a regular basis.
180 I also accept Dr. Rinker's opinions as to the cause and nature of the offensive odours. Again, for accuracy, I shall quote some of his writings in summarizing his opinions. He explained that the "normal" odour is referred to as "sweet" in the industry and is not offensive. However, at various times the odour is offensive and this is because the composting process produces chemical compounds which are odorous. Sulphide compounds produce the most offensive odours. The various odorous compounds produce odours which he described as rotten eggs, foul, more rancid, vinegar, fishy.
Importantly, odours may be created by more than one compound, and this fact may be further complicated by the existence of synergistic effects between various compounds in a mixture, such that several moderately offensive smelling compounds in combination may form an excessively foul odour, or increase the overall perceived odour intensity. The Analysis of Mushroom Composting Odours, op. cit., at p. 60.
181 He described his personal observations at GMF on visits between 1994 and 1998. He said on various visits he smelled odours which he described variously as a sulphur smell, an unpleasant odour from the poultry litter, stable odours, a strong smell of ammonia, a sulphur compound smell like a sewage treatment plant.
182 These observations bear a striking similarity to the observations of the plaintiffs and contradict the testimony of Mr. Snobelen and Mr. Clay Taylor that they did not smell such odours at the site. I find that the phenomenon of not smelling the odour after long exposure does not explain this discrepancy. I note, for example, that Mr. Taylor also testified that at least on one occasion he did smell something which shows he had not lost his capacity to smell.
183 Dr. Rinker also explained that the levels of odorous compounds produced varied with the stage of the phase 1 composting process and in particular were high when the material was turned. This turning occurs every couple of days and because there are always several ricks of material each in a different stage of the process, it is clear that the high level of production could occur more frequently than every couple of days. As his paper put it, "Odorous compounds are produced throughout the course of a Phase 1 composting cycle." Duns, Ripley, and Rinker, Monitoring the production of odorous compounds during Phase 1 mushroom composting, Mushroom World, March 1998, p. 60.
184 Dr. Rinker testified that some odours are detectable at a distance from the composting site. His opinions were based on his own experience and from the study he conducted during which periodic samples were taken from the Pyke property in October and November 1997. Over a nine week period samples were taken by instruments and a human observed the odours detectable by the human nose. The samples were taken on the same two days each week. The human observed offensive odours on 11 of the 34 occasions she took the samples. In the context of this trial, the weight of the opinions of Dr. Rinker is enhanced by the fact that the human observer who made the observations of the offensive odours was the wife of Mr. Brent Taylor who on occasion worked in the composting operation. Significantly, Mr. Taylor testified that he never smelled any offensive odours at the Pyke property where he now lives.
185 The testimony of all the witnesses and the opinion of Dr. Rinker show that the human nose is a very sensitive and a very subjective instrument.
The key factor in the analysis of odours is the capture and detection of trace concentrations of volatile compounds. Due to this factor, odour problems can present complex challenges. Odour analysis and odour controls are a function of both the extreme sensitivity of the human sense of smell, and of the subjectivity of odour perception. The human nose is the ultimate instrument for odour detection, with a sensitivity capable of detecting one part of an odorous substance in hundreds of millions of parts of air. Some chemicals with characteristically offensive odours have odour thresholds in the sub parts-per-billion (ppb) range, which makes chemical analysis extremely difficult in that such low levels are often below the detection limit of conventional analytical instrumentation .... The establishment of effective odour control measures is complicated by the fact that there is an absence of a direct relationship between the concentration and perceived intensity of odours for humans. Rather, human response to odour is known to be a non-linear effect, with the response or perceived intensity related to the concentration of the odour by some fractional power of the concentration. This implies that a considerable reduction in concentration of the odour-producing chemical(s) may be required in order to provide a recognizable change in perceived odour intensity. The Analysis of Mushroom Composting Odours, op. cit., at p. 59-60.
186 I also accept Dr. Rinker's opinion that a person can experience a loss or diminution of the ability to detect an offensive odour after a long period of exposure. This conclusion is also supported by the combination of the testimony of many witnesses.
187 I accept Dr. Rinker's opinion that the extent to which the odours are transmitted off-site can be affected by numerous factors in addition to the activity and stage of the composting process:
The transport properties of compounds in air are determined by a combination of parameters, including atmospheric and meteorological factors, such as wind velocity and direction, air temperature and moisture content. In addition, the physical characteristics of the location of both the source of odours and of the surroundings to which the odours may drift, as well as the transport distance between sites, the rate of production and dispersion of compounds in air, and the chemical and physical properties of the particular compounds in question, may also play a role in the transport of odours. Off-site Detection of Odorous Compounds Produced by Phase 1 Composting, op. cit., at p. 18.
188 The evidence does not establish the extent to which the odours are carried in the vapour given off the ricks. Dr. Beyer mentioned that it is his practice to walk in the water vapour beside the ricks to see if he can detect anerobic odours. He said it was possible that the vapour could carry odours including ammonia but he was of the opinion that the ammonia would dissipate before it left the site. Dr. Rinker agreed.
189 Despite the testimony of Mr. Snobelen and Mr. Clay Taylor directed at showing that fog or vapour did not travel from the ricks to the plaintiffs' properties, Dr. Rinker's testimony gave some support to the plaintiffs' observations. He said that when he attended GMF in December 1994 he observed steam coming off the ricks, rising vertically for several hundred feet in the air and then going south. He and Dr. Beyer said this vapour was normal to the production process. Dr. Rinker also gave the opinion that it would be unsafe to put the composting process in a building because it would produce fog and could be dangerous because it would be difficult to see.
190 The overwhelming weight of the testimony of all the witnesses also establishes that the composting equipment and practices used by the defendants since the summer of 1995 inevitably produce periodic offensive odours.
2. How can the conflicting evidence about odours be reconciled?
191 The gist of the testimony of Mr. Snobelen, Mr. Clay Taylor, Mr. Brent Taylor and Mr. Van Dusen was that there were seldom any offensive odours in the immediate area of the composting operation and virtually never any off site.
192 I found the testimony of Mr. Snobelen and Mr. Clay Taylor confusing. Although they gave testimony along these lines they also said they thought the neighbours had legitimate complaints in 1994 and early 1995. That would make no sense unless there were offensive odours off-site at that time. Their testimony also conflicted with that of every plaintiff. I conclude that in their effort to minimize the plaintiffs' complaints they deliberately gave the court an inaccurate impression of the odours produced by composting.
193 The denial of GMF employees that composting was odorous at all was directly contradicted by their expert, Dr. Rinker.
194 In view of the testimony of Dr. Rinker it is not surprising that the degree of offensiveness observed by the plaintiffs may not have changed when the defendants changed their practices in 1995, or that the plaintiffs would make different observations from each other and the defendants on the same occasions in the same place or in different places. There might be no or little odour at the rick but be an offensive odour off-site. There might be an offensive odour on the property of one neighbour but not on the property of another at the same time. The odour could dissipate off-site before the defendants attended to investigate. The offensive odour detected at the same location off-site could come and go frequently and unpredictably.
195 These factors were so evident that neither counsel thought it worthwhile to attempt to chart or compare the observations of the plaintiffs on the same dates and for the same reason I shall not do so.
196 I was troubled by the testimony of Mr. Van Dusen who was the only employee of GMF who regularly made observations and kept logs of his observations of odours. His general practice was to open his car window when going to and from the farm and to make a note of whether or not he smelled odours. He kept these logs from 1995 to 1999.
197 His testimony and logs created a much different impression than the evidence of the plaintiffs. On most days he noted no odour at all. When he did it was only a slight odour and was often only noted at the farm gate or lane. He said that on only a couple of occasions over those years did he ever notice an odour which was sharp or pungent.
198 I find that his evidence and logs are unreliable indicators of the off-site odours for several reasons. He only made his observations from the car. He was not in the same position long enough to determine if an odour was present at a particular location during a day except at the very moment he drove by. He could have been in a pocket. He claims he only noticed what I would categorize as an offensive odour on a couple of occasions over 4 years; this directly contradicts the testimony of the many plaintiffs, the evidence of Dr. Rinker that offensive odour problems are commonplace off-site at farms everywhere and also conflicts with the research data of Dr. Rinker collected at this very farm. I conclude that the evidence of Mr. Van Dusen does not materially diminish the reliability of the plaintiffs' evidence.
199 Although some of the plaintiffs' exaggerated the degree and frequency of offensive odours, I generally found them to be credible witnesses. I was impressed by the detailed notes that many of them kept and that they were made without any significant collaboration. I was impressed with the similarity of their experiences. I was impressed that they described the odours from other farm operations such as the adjacent pig farm as being acceptable. It is significant that some of the plaintiffs have had long experience living on working farms and yet find the odours from GMF to be intolerable.
3. Do the odours constitute a nuisance? The law of nuisance
200 I propose to analyze the claim in nuisance in accordance with the law of nuisance as summarized in Linden, Canadian Tort Law, 6th ed., Butterworths, 1997 in Chapter 15.
201 The material claim of the plaintiffs is about odours. There is no doubt that odours can be the subject of a claim in nuisance.
202 The fundamental issue in a nuisance claim is whether, taking into account all the circumstances, there has been an unreasonable interference with the use and enjoyment of the plaintiffs' land.
203 In this case the plaintiffs rely on the alleged injury to their health, comfort and convenience, and the alleged depreciation of the resale value of their lands.
204 To establish nuisance, the plaintiffs must show substantial interference which would not be tolerated by the ordinary occupier in their location. The test is objective. The interference must be repeated or continuous.
205 In considering the interference, the court must consider the type of interference, the severity, the duration, the character of the neighbourhood and the sensitivity of the plaintiffs' use of their lands. With respect to the severity of the interference, it is not actionable if it is a substantial interference only because of the plaintiff's special sensibilities. With respect to the character of the neighbourhood, the court should consider the zoning, whether the defendant's conduct changed the character of the neighbourhood and the reactions of other persons in the neighbourhood.
206 The court must balance theses considerations against the value of the defendant's enterprise to the public and the defendant's attitude toward its neighbour. The court must consider whether the defendant is using the property reasonably having regard to the fact that the defendant has neighbours. The court should consider whether the defendant took all reasonable precautions.
207 The defence raised some arguments to the effect that the agricultural zoning barred a claim in nuisance. This is not so. A person's conduct can comply with zoning requirements but still produce a nuisance.
Findings as to whether the odours constitute a nuisance
208 I have no hesitation in finding that the operation of GMF has constituted a nuisance at common law from the commencement of its operations. I shall briefly explain my findings in the context of the law as I have summarized it above.
209 The operation of GMF has produced offensive odours and a haze and there is some evidence that it produces noise. While annoying, the haze is not sufficient to constitute a nuisance because it is infrequent. The evidence does not establish that the noise is a nuisance. However, the odours, some of which are associated with the haze, have affected the physical well-being of the plaintiffs to a significant degree and very substantially disrupted their use of their lands.
210 The number of the plaintiffs, their testimony and their varied backgrounds satisfy me that the interference would not be tolerated in their location by the ordinary occupier whether that person be only a resident or also a farmer. Other than the defendants, every owner called as a witness has found the interference intolerable. The only witness from the area who was not a party was the golf director of the Thunderbird Golf Club who took the same view as the plaintiffs. The interference has been repeated frequently.
211 The neighbourhood is rural. The zoning is agricultural but the majority of the owners to the southwest of GMF use their lands for primarily residential purposes. In the surrounding area there is also mixed farming, a hog farm, a dog kennel, a stable and a golf course. The severity of the interference is not the result of the plaintiffs' special sensibilities although one of the plaintiffs has special sensibilities which have magnified the impact on her. The operation of GMF has dramatically changed the nature of the neighbourhood. While the mushroom farm is classified by statute as an agricultural operation the odours and haze it produces are completely unheard of and intolerable to the owners in the area which was the subject of the evidence. The plaintiffs have resided in the area for up to 58 years and the interference caused by GMF is unprecedented. Three of the plaintiffs have resided on working farms in the area for decades. The reasonableness of the plaintiffs' complaints is enhanced by the fact that they have tolerated the usual farm odours from mixed farms and a hog farm.
212 The defendants' operation produces a food product and an agricultural producer of food is a valued enterprise. However, it is not the growing of mushrooms which is the nuisance but only the composting of material used to grow the mushrooms. The defendants have made efforts at significant expense to reduce the nuisance caused by their operation but have deliberately tried to belittle the neighbours' complaints and have falsely denied under oath that their operation produces a nuisance. I accept the evidence of the defendants' experts that they now take all the reasonable precautions possible in the current state of the art of mushroom composting. However, the use of the defendants' land for composting is unreasonable having regard to the fact that they have neighbours.
213 Considering all these factors, I find that the defendants' operation has caused an unreasonable interference with the use and enjoyment of the plaintiffs' lands by producing offensive odours. The odours constitute a nuisance at common law.
4. Are the plaintiffs' claims in nuisance barred by the "right to farm" legislation? A. What protection do the statues provide to farmers from civil actions based on the common law of nuisance?
214 In the course of the trial numerous references were made to two statutes which are at the centre of this controversy: the Farm Practices Protection Act, R.S.O. 1990, c. F.6 and its successor, the Farming and Food Production Protection Act, S.O. 1998, c. 1. There are no court decisions interpreting or applying either of them. Counsel pointed out a number of ambiguities and confusing provisions of these Act and gave them conflicting interpretations.
215 Each statute established a Board to deal with various issues including complaints against farmers and each provided farmers with some protection against law suits complaining of odours.
216 Neither statute gave the Boards exclusive jurisdiction concerning odour complaints. The issues in dispute here were never taken to the Boards.
217 For the purpose of considering the issues in this case I shall first set out some of the provisions of the two statutes which are relevant and state my conclusions as to their meaning. I shall then consider the other issues raised concerning the two statutes.
(i) analysis of the Farm Practices Protection Act
218 I find that it applies to the operator of a mushroom farm including the composting operations. The definitions sections state that the Act applies to a person who carries on an agricultural operation which is defined to include the production of mushrooms. [s. 1(d)]. An agricultural operation is also defined to include "the storage, disposal or use of organic wastes for farm purposes". [s. 1(i)] In addition to the definitions and the expert evidence, I note that composting has been held by the courts of British Columbia to be a part of the operation of a mushroom farm in the context of similar farm protection legislation: T and T Mushroom Farm Ltd. v. Langley (Township) [1997] B.C.J. No. 1520; leave refused [1997] S.C.C.A. No. 426.
219 The statute gives the operator some protection from law suits complaining of odours. Section 2 states:
2(1) A person who carries on an agricultural operation and who, in respect of that agricultural operation, does not violate,
(a) any land use control law;
(b) the Environmental Protection Act
(c) the Pesticides Act;
(c) the Health Protection and Promotion Act; or
(d) the Ontario Water Resources Act,
is not liable in nuisance to any person for any odour, noise, or dust resulting from the agricultural operation as a result of a normal farm practice and shall not be prevented by injunction or other order of a court from carrying on the agricultural operation because it causes or creates an odour, a noise or dust.
(2) Subsection (1) does not apply to an owner or operator of an agricultural operation that fails to obey an order of the Board made under clause 5(3)(b).
220 The statute provides no protection to the operator from prosecution under the Environmental Protection Act.
221 In the context of this case the scope of the protection from law suits complaining of odour under the common law of nuisance is this: a court cannot award damages against the operator of a mushroom farm if all these factors exist:
a. The operator is not violating the Environmental Protection Act.
b. The odour results from the operation.
c. The odour is the result of a normal farm practice.
d. The operator has not failed to obey an order of the Board.
222 The court cannot grant an injunction against the operator unless one or more of those factors do not exist. Even if one or more of those factors does not exist s. 6 provides that a court cannot grant an injunction if the matter is before the Board unless there is a proceeding pending under one of the listed statutes.
(ii) analysis of the Farming And Food Production Protection Act, 1998
223 This statute replaced the Farm Practices Protection Act. It also specifically applies to an operator of a mushroom farm including the composting operations. [s. 1(1), (2)]
224 It also gives the operator some protection from law suits complaining of odours but on different conditions. Section 1(1) defines 'disturbance' as including odour. Section 2 states:
2(1) A farmer is not liable in nuisance to any person for a disturbance resulting from an agricultural operation carried on as a normal farm practice. (2) No court shall issue an injunction or other order that prohibits a farmer from carrying on the agricultural operation because it causes or creates a disturbance. (3) Subsections (1) and (2) do not apply to preclude an injunction or order, in respect of a nuisance or disturbance, against a farmer who has a charge pending related to that nuisance or disturbance under the,
(a) Environmental Protection Act;
(b) Pesticides Act;
(c) Health Protection and Promotion Act; or
(d) Ontario Water Resources Act.
(4) Subsections (1) and (2) do not apply to preclude an injunction or order, in respect of a nuisance or disturbance, against a farmer who is in contravention of an order of the Board made under clause 5(4)(b) related to that nuisance or disturbance.
(5) This Act is subject to the Environmental Protection Act, the Pesticides Act and the Ontario Water Resources Act.
225 As stated in subsection 2(5), the Act provides no protection from the Environmental Protection Act. Mr. Stone who has been responsible for the administration of this statute and its predecessor said it is his department's view that farmers are exempt from prosecution. In my view that is clearly not what either statute says.
226 The protection from law suits for damages is different from the protection from injunctions.
227 The statute initially states in subsection 2(1) that a court cannot give a remedy under the common law of nuisance because of an odour if all these factors exist:
a. The odour results from the agricultural operation.
b. The operation is carried on as normal farm practice. Subsection 2(2) omits any reference to a normal farm practice and consequently is broader than subsection 2(1).
228 Subsection 2(2) generally prohibits a court from granting an injunction to stop a nuisance regardless of whether the operation is carried on as a normal farm practice.
229 It is not clear what effect subsections 2(3),(4) and (5) have.
230 With respect to subsections (3) and (4) it appears to me that they were intended to preserve the right of a complainant to seek relief when there is a pending prosecution under one of the statutes listed or where the operator is acting in contravention of an order of the Board.
231 Although subsection (3) refers to subsection (1) it appears to me that it does not mean that a complainant could obtain a judgment for damages where there is a prosecution pending under one of the listed statutes. Because subsection (3) refers only to a pending prosecution, it would not be reasonable interpret it as removing the protection from damages simply because of an allegation of an offence which might never be proven. Also, the reference to a pending prosecution must mean that it would not permit an injunction after a conviction were registered.
232 With respect to subsection (4), it appears to me that this provision means that while an operator is absolutely protected from an injunction, and is generally protected from an award of damages while operating as a normal farm practice, the operator will lose the protection from both if the operator disobeys an order of the Board with respect to that nuisance.
233 Consequently, the current statute has significantly restricted the circumstances where an injunction was available under the previous statute. The protection in the previous statute did not distinguish between remedies but the current statute deals with each differently. No injunction can now be issued solely on the ground that the defendant is not following normal farm practice. A successful plaintiff in a nuisance action is now limited to a remedy of damages. It also seems clear from the combination of subsections (2), (3) and (4) that even if there is a conviction or if there is a judgment in a nuisance action, the court cannot issue an injunction. The remedy of a permanent injunction is limited to situations where the operator acts in contravention of an order of the Board.
234 Consequently, the most reasonable interpretation I can give this statute is this. A court can award damages against an operator under the common law of nuisance in only two situations: first, if the odour results from an operation which is not carried on as a normal farm practice; second, if the operator has failed to obey an order of the Board with respect to that nuisance.
235 Further, a court can only grant an injunction against an operator under the common law of nuisance in two situations: first, if there is a prosecution pending alleging that nuisance under one of the listed statutes; second, where the operator has failed to obey an order of the Board with respect to that nuisance.
236 Although an injunction could be issued as a remedy in a nuisance law suit under the previous statute, it cannot be issued under the Farming and Food Production Act, 1998. In my view it would be inappropriate to issue an injunction now that the current statute has removed the remedy because only the current statute applies to conduct occurring after it came into force.
237 Subsection (5) is more problematic. The previous statute clearly stated that the operator would not be immune to a law suit in nuisance if the nuisance also constituted an offence under the Environmental Protection Act. The current statute uses ambiguous language concerning the issue.
238 Counsel have drawn my attention to a number of principles of interpretation in support of their competing positions. They referred to the following passage from Sullivan, Dreidger On the Construction of Statutes, 3rd. ed. Butterworths, 1994, at p. 131:
There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of (a) its plausibility, that is, its compliance with the legislative text; (b) its efficacy, that is, its promotion of the legislative purpose; and (c) its acceptability, that is, the outcome is reasonable and just. [cited with approval in Pointe-Claire (City) v. Quebec (Labour Court) [1997] 1 S.C.R. 1015 at 1063-1064.
239 With respect to the purpose of the legislation, counsel pointed to the preamble to the statute which speaks of protecting farmers even though their operations may cause discomfort to neighbours. It also speaks of protecting farmers in a way which balances the needs of the agricultural community and environmental concerns.
240 I was also directed to the legislative debates preceding the enactment of this statute and its predecessor.
241 When the Farm Practices Protection Act was introduced, the Minister of Agriculture stated that the Act was not intended to give farmers the right to pollute: Hansard, December 17, 1987, p. 1279. He also said that farmers had expressed a concern that even though they follow normal farm practices they could still be subject to prosecution under the Environmental Protection Act and that in response to that concern, the government had developed protocols so that a complaint about pollution could be directed to the Farm Practices Protection Board and that a decision to prosecute under the Environmental Protection Act would not be made until the Board made a decision. Exhibit 42 is a publication of the Ministry of Agriculture which states that the Ministry of the Environment will not prosecute unless the complainant first takes the matter to the Board. The speech of the Minister, both statutes and that publication all recognize that technically a normal farm practice could constitute an offence under the Environmental Protection Act. If it could not, there would be no need for the provisions in s. 2(1)(b) of the Farm Practices Protection Act, or s. 2(5) of the Farming and Food Production Protection Act, 1998.
242 When the successor statute was introduced, the Minister stated that it was intended to give farmers additional protection and specifically mentioned the new protection in s. 6 which meant that if the Board found the practice to be a normal farm practice, the farmer would be protected from any applicable municipal by-law: Hansard, June 26, 1997, p. 11175. The Minister also said the new statute was still intended to require farmers to adhere to all environmental laws: Hansard, September 24, 1997, p. 12391. He did not explain what was intended by deleting s. 2(1) which made it a condition of civil suit immunity that the farmer not be in violation of various statutes.
243 I infer from Exhibit 42 and the testimony before me that the Ministry of the Environment has adopted a policy that it will not prosecute unless the pollution complaint is referred to the Board and that the Ministry will not prosecute at all if the farmer follows normal farm practice. In my view the latter policy is based on an erroneous interpretation of the two right to farm statutes.
244 Counsel also relied on a number of presumptions and special rules of interpretation.
245 Generally, special legislation is taken to override general legislation if they are in conflict: Re Manitoba Government Employees Association and Government of Manitoba et al. (1977), 79 D.L.R. (3d) 1 (S.C.C.). However, there is no conflict between the Farming and Food Protection Act and the Environmental Protection Act as to whether a normal farm practice can still amount to a pollution offence especially in view of the fact that s. 2(5) makes the specific statute "subject to" the general statute.
246 There is also a general rule that a right should not be removed unless the statute does so specifically. The plaintiffs claim that the original Act specifically interfered with their right to sue under the common law of nuisance but permitted an action about a normal farm practice if the farmer was in breach of the Environmental Protection Act. They contend that this right to sue in those circumstances should be taken to remain because of s. 2(5) of the successor Act. On the other hand, the defendants point out that the original Act specifically limited the farmer's protection to circumstances where the farmer was not in breach of the other statute and since this specific limitation has been removed it should be taken to be removed.
247 I also note that the reference to the Health Protection and Promotion Act was not included in the successor statute so that in this respect the legislature clearly intended that the protection from civil action did not depend on compliance with that statute.
248 The caselaw regarding statutory interpretation also directs the court to consider what would be a reasonable and just interpretation. In this regard, I must say that I am troubled by a policy that a farmer can cause serious harm to a neighbour as the result of a normal farm practice without that neighbour having any remedy in damages. 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 especially where, as in this case, the farmer is the newcomer and is introducing the harm to the neighbourhood. However, the legislature is entitled to make social policy even though it causes disadvantage to individuals. From the perspective of both parties it also does not seem practical to permit a court to award damages for a nuisance but not to permit the court to issue an injunction to stop it.
249 I conclude that the legislature removed the specific condition that a farmer is not entitled to protection from civil suit if the farmer is in breach of specified statutes, and replaced it with a provision that states that the statute is "subject to" some but not all of those statutes, for the purpose of removing the condition without expressly saying so. It may be that the legislature did not want to offend those who promote protection of the environment. In other words, it was a diplomatic or political way of rescinding the condition.
250 Taking all the factors into account I conclude that under the Farming and Food Protection Act, 1998 the legislature has separated the concepts of civil liability from the quasi-criminal liability under the listed statutes. I conclude that all subsection 2(5) means is that the operator is still theoretically subject to prosecution under the Environmental Protection Act and the other two statutes listed even though the operator may have some immunity from civil action based on the same conduct. This interpretation would reflect the balance of the needs of agriculture and the other interests which are mentioned in the preamble to the statute.
B. Which statutes apply to this case?
251 The odours complained of in this case began in the fall of 1994 and continue today.
252 The Farm Practices Protection Act was in force in 1994 but was repealed on May 11, 1998 when the Farming and Food Production Protection Act, 1998 came into force. Consequently, there is an issue as to whether the claims in this action are governed by one or both statutes.
253 The statutes are silent on this point.
254 The common law principles applicable to this issue are summarized in Dreidger, op. cit., at p. 552.
255 There is a general presumption that legislation is not retroactive. I find nothing in the second statute to rebut this presumption.
256 It is presumed that a new statute will apply to on-going facts unless its application would interfere with vested substantive rights. Where the application to vested rights would be unfair it is presumed not to apply. Whether it is unfair is not simply a matter of looking at the effect on the parties in this case but involves considering the rights of all persons who would be affected by a retrospective application. I conclude it would be unfair to interpret the current statute as removing any vested rights to sue under the common law of nuisance under the first statute. The plaintiffs commenced their action before the second statute came into force.
257 The provisions of s. 14 of the Interpretation Act also apply and I find that subsections 14(1)(b),(c) and (e) have the effect of making the repealed statute govern the claims relating to acts done while it was in force.
258 I conclude that the first statute applies to all claims based on facts occurring during the period when it was in force and that the second statute applies to all facts occurring since it came into force. Consequently, I conclude that the present action is governed by both statutes and that the claims must be considered in two time frames.
C. Should the court refer the issue of what is a normal farm practice to the board?
259 After I reserved judgment I asked counsel for submissions as to whether I should exercise my discretion to decline to decide if the defendants' operation fell in the category of normal farm practice and leave the plaintiffs to seek a ruling from the Board. I raised this issue only when my study of the right to farm legislation led me to the view that the there is a very significant policy-making role in determining what is a normal farm practice and that the determination does not involve only a comparison of existing farm procedures.
260 I am satisfied the court has the discretion to decline to make a determination which is within the jurisdiction of an administrative tribunal: Maher v. Rogers Cablesystems Ltd. (1995), 25 O.R. (3d) 690 (Gen. Div.).
261 If this issue had been raised by the parties at the commencement of the trial I might have taken this approach but I have concluded it is not appropriate at this stage for a number of reasons.
262 The parties have gone to enormous expense to present this case to the court and if this issue were referred to the Board the evidence would have to called again. A transcript would not be sufficient as there are many credibility issues. The situation would become extremely complicated if the evidence called before the Board differed from that put before me.
263 While the Board obviously has expertise relating to farm procedures which I do not, the main factor on which I propose to rely in determining whether this is a case of normal farm practice is not one on which the Board has any special expertise.
264 There are numerous related issues of statutory interpretation here because of the poor drafting of the statutes and the use of ambiguous and unconventional language. I believe the court is better equipped to deal with them.
265 If the matter were referred to the Board there would be a very significant delay in resolving this dispute. The delay would become even worse if one of the parties appealed the ruling of the Board before returning to this court to continue the trial.
266 If the matter were referred to the Board and it found this was not a case of normal farm practice it could order the composting operation to stop but could not compensate the plaintiffs because this is not within their authority. The parties would have to return to the court once again. As I will discuss, if the plaintiffs succeed before me I can compensate them but cannot issue an injunction to terminate the nuisance. This is a very impractical and costly division of authority. To make matters worse we already have another proceeding pending in another court under the EPA.
267 The legislature apparently did not consider the Board to have a unique expertise on the subject matter covered by the Act as s. 8 provides for an appeal on "any question of fact, law or jurisdiction" to the Divisional Court.
D. Do the right to farm statutes bar the plaintiffs' claims because the defendants' operation is protected as a normal farm practice?
268 The previous statute made the protection from all common law nuisance remedies conditional upon the disturbance being the result of a normal farm practice and the current statute retains that condition with respect to protection from damage awards.
269 The Farm Practices Protection Act sets out this definition in s. 1:
"normal farm practice" means a practice that is conducted in a manner consistent with proper and accepted customs and standards as established and followed by similar agricultural operations under similar circumstances and includes the use of innovative technology used with advanced management practices.
270 The Farming and Food Protection Act, 1998 defines the term in subsection 1(1) as follows:
"normal farm practice" means a practice that,
(a) is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances, or
(b) makes use of innovative technology in a manner consistent with proper advanced farm management practices.
271 I have underlined the only two differences in the definitions which in my view are material in this case.
272 Both statutes give the Board the power to determine whether a practice is a normal farm practice but do not prevent the court from making such a determination and do not require a complainant to go to the Board. Indeed, if the complainant sues without first going to the Board, the court must make a determination as to whether or not the operation is conducted as a normal farm practice before it can determine if the claim is barred. Section 6 of the current statute gives some further direction. Subsection 6(1) states:
(1) No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.
273 Subsection 6(15) states:
(15) In determining whether a practice is a normal farm practice, the Board shall consider the following factors:
1. The purpose of the by-law that has the effect of restricting the farm practice.
2. The effect of the farm practice on abutting lands and neighbours.
3. Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement.
4. The specific circumstances pertaining to the site.
274 It appears to me that factors 1, 2 and 3 have no relevance to any part of the statutory definition of 'normal farm practice' except the requirement that it be "acceptable". This supports my view that when the legislature changed the definition in the new statute by replacing "proper and accepted customs and standards" with "proper and acceptable customs and standards" it was the intention of the legislature to make clear that the Board and the court have the power to consider not just whether a practice was normal but also whether it was acceptable in a very broad context. The addition of the word 'proper' seems to reflect the same intention. Counsel for both parties agree that there is a broad policy power in determining what is a normal farm practice.
275 In introducing the current statute the Minister of Agriculture said:
The board's central role under the act is to determine whether or not the activity in question is a normal farm practice .... I have every confidence that the new board will have the necessary experience and knowledge to make fair and balanced decisions.
Bill 146 is a major improvement over current legislation for a number of reasons .... It spells out that normal farming practices are those that are consistent with proper and acceptable customs and standards followed by the industry .... Hansard, September 24, 1997, p. 12391. [my underlining]
276 The Minister also said in the same speech that determining what is a normal farm practice is not complicated [at p. 12391]. With respect, I disagree. Because the definition in the current statute includes a determination of what is acceptable, it is a very difficult decision which must, as he noted, take into account and balance a wide variety of factors.
277 Both statutes include in the definition of normal farm practice the factor of whether the operation is conducted "in a manner consistent with proper and accepted [acceptable] customs and standards as established and followed by similar agricultural operations under similar circumstances".
278 At the conclusion of the evidence counsel for the plaintiffs indicated that it was their position that the defendants had not proved they were entitled to the protection granted to normal farm practices because the defendants had not adduced sufficient evidence that their operation was conducted under "similar circumstances". In particular, the plaintiffs contended that the defendants had not established that comparable operations were adjacent to residences of other persons.
279 Mr. Colautti asked leave to adduce additional evidence on this point and I re-opened the trial.
280 I gave reasons at that time which I shall now summarize. One of the issues was this: what evidence does the farmer have to adduce to establish that his operation was conducted in similar circumstances? Does such evidence have to show that the actual effect of the defendant's operation is similar to the effect of other operations? For instance, does the defendant farmer have to call as witnesses the neighbours of other operations so they can describe the effect of those other operations on their property? In my reasons I said:
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.
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 [to show how the defendant's operation compared to other operations] 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.
It would also include other factors which are already in evidence such as the size of the operation and the formula used.
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 the 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. [I have added the words in brackets for clarity]
281 Counsel referred me to two decisions of the Board under the first statute which deal with the issue of similar circumstances and the issue of the effect on neighbours: Huff et al. and Prinzen, Board File No. FPPB90-01, April 25, 1991; Bazinet and Lapointe, Board File No. FPPB95-01, November 30, 1995. In both cases the Board ruled that the proximity of neighbours was a relevant consideration in determining whether the operator's action was carried out under similar circumstances. In both cases the only evidence adduced concerning similar operations related to operations in the same immediate area. The Board did not comment on whether "similar circumstances" makes only the operations in the immediate area relevant or, for instance, whether operations all over the province are relevant. In the case before me the parties called evidence about the operations of mushroom farms all over the province. There was also some general evidence about the mushroom farm of the defendants a few miles to the west of GMF and about mushroom farms in Pennsylvania.
282 I did not receive enough evidence to enable me to compare the sequence of the start up of mushroom farms in any other area in the context of whether other mushroom farms were begun in an area where there were already a number of adjacent residences or whether the farms were in operation before residences were built nearby. In my view, the scheme of the two statutes and the approach taken in the decisions of the Board make this a relevant factor in determining normal farm practice.
283 The consideration of this factor would also seem to be a fair and reasonable way of balancing the interests of the public in agriculture and in providing housing. Within a five minute drive of the courthouse where this trial took place there are numerous examples of situations where there are agricultural operations immediately beside housing subdivisions. Indeed, the subdivisions are spreading rapidly into what has been farmland. In considering, for example, how these statutes would operate if the mushroom farm were immediately adjacent to one of these subdivisions, it would seem to me to be appropriate to consider what was the normal farm practice in the area before the subdivisions were built. If GMF were adjacent to one of these subdivisions it would seem to me to be relevant to consider whether the farmland was first used for a mushroom farm before or after the subdivisions were built. Another example would be the situation where a mushroom farm was started in an area where there were already other mushroom farms operating in close proximity to residences. That would seem to me to be a significantly different situation from the one here where the previous farm operations adjacent to the plaintiffs' residences did not produce anything close to the degree and frequency of offensive odours which were introduced by GMF.
284 It also appears to me that the inclusion of this factor in determining what is normal farm practice would be consistent with the intention of the legislature in enacting this legislation. The speeches of the Ministers who introduced the two statutes and of the members of all parties in the legislature who supported them contain a number of comments like this:
However, we have allowed land to be taken out of production throughout the province. A number of severances have taken place on farm land over the past. In many cases, a piece of land was severed to be used by the retiring parents on the farm, or by maybe a daughter or a son who wanted to come home and enjoy the country environment. We find that they would inhabit that house for a period of three to five years, and the first thing you know it would be on the market. Somebody from the city, clamouring for a country environment, would come out and buy that land, but would not be prepared to accept the odours, the dust and the noise accompanying good, normal farm practices. Hansard, November 16, 1988, p. 5934.
In addition, prior to implementation, the ministry, in partnership with the OFA, the CFFO and ROMA would launch an education and awareness campaign to inform potential rural property purchasers, real estate agents, farmers and municipalities about the normal farming practices used in that area. Hansard, June 26, 1997, p. 11176.
We made a pledge then that we would put in place a law that is more in step with the times; a law that protected the rights of farmers using normal farm practices to continue raising the food products we all use ...
The bill before us today does this because it balances the rights of those who conduct their farming businesses in rural Ontario with the rights of all those who live in rural Ontario ...
As growth encroaches on agricultural land, these nuisance issues of noise, odour and smell do emerge. What is the long-practising farm operation to do with the gradual migration of city folk who are less tolerant of those things?
Hansard, September 24, 1997 at p. 12389, 12396.
285 It is clear that the legislation was intended to protect farmers from unreasonable complaints of people who are intolerant of agricultural disturbances because they are used to city living and that it was also intended to protect farmers who are already carrying on agricultural practices which produce disturbances which are normal in the area. The defendants in this case do not fall into either category. I recognize that there is a broad spectrum of farm types and of agricultural practices and I am not suggesting that a farm will not be complying with normal farm practice if it commences operations in an area where that type of farm has not operated before. The issue would be whether the intensity and frequency of any nuisance produced by that farm would be consistent with normal farm practice in that area. In the case before me the evidence establishes that the GMF produces a nuisance which because of its intensity and frequency is completely out of character for this rural area.
286 It is not unreasonable to expect city folk moving to residences in the country to make enquiries and to tolerate any normal farm practices which already produce a nuisance in that area. Similarly, it is not unreasonable to expect new types of farms which produce a nuisance which is fundamentally different in intensity or frequency or both from those already existing in a rural area to make enquiries and desist from conducting such operations in that new area. Nor is this a new concept. As mentioned earlier, Dr. Rinker in his publication written for the Ministry of Agriculture and Food recognized that composting odours were a world wide problem and said, "... anyone considering constructing or purchasing a mushroom farm must be especially cautious in choosing the site for composting preparation". He noted that some farms had to relocate their composting operations up to 160 km. from the growing site. The evidence satisfies me that the defendants were well aware of the potential effect on neighbours and should not have started composting in this area.
287 In my view the protection available for normal farm practices is not available to the defendants for two reasons.
288 First, I find that the operation of GMF up until about the spring of 1995 was not conducted in a manner consistent with accepted customs and standards as established by similar mushroom farms under similar circumstances by virtue of the fact that the composting was not carried out properly. As I have noted, even some of the defendants acknowledged that there were unacceptable odour problems in that period. The defendants are not entitled to the protection for innovative technology or advanced management practices as they were not employing any new technology and there was nothing significantly new about their management practices. The statutes cannot be interpreted to protect careless and indifferent experimentation with untested procedures.
289 My second reason relates to the time frames of both statutes and concerns the factors of similar circumstances, acceptability and competing land uses.
290 The proximity of neighbours is not the decisive issue. It was the unanimous opinion of all the knowledgeable witnesses that the composting practices, equipment and facilities used by GMF since the spring of 1995 were customary in the mushroom industry. While Mr. Graham tried to draw distinctions between the relationship of GMF to residential neighbours compared to other mushroom farms, the overwhelming weight of the lay and expert evidence on this issue showed that there was no material difference. There was no evidence which would enable the court to form any opinion as to whether the neighbours of other farms were more or less affected by offensive odours. But that is not the only issue.
291 From the commencement of its operations GMF was not operating in a manner consistent with proper and accepted customs and standards as established and followed by similar agricultural operations under similar circumstances and was not operating in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances because GMF commenced its operations in an area where the nuisance it produced was completely out of character. There is no evidence that such a fundamental change in an area's environment had ever been introduced anywhere else in similar circumstances. In any event I do not think it is acceptable. In my view the intensity and frequency of the odours produced by GMF fundamentally changed the rural environment the plaintiffs enjoyed before. Even those of the plaintiffs who had been farmers themselves found the GMF odours intolerable.
292 Having considered the factors I discussed earlier as relating to what is a normal farm practice, I conclude that the GMF operation was never in the category of normal farm practice.
293 I have considered whether 1094581 Ontario Limited might be in a different position than the other plaintiffs because that plaintiff purchased its land after GMF started its operation. I have concluded that the defendants had no defence to the claim of that plaintiff. When that plaintiff purchased its land the defendants had no statutory defence to a claim in nuisance because the defendants were violating the Environmental Protection Act. Consequently, that plaintiff was entitled to take the view that while the defendants were creating a nuisance before the plaintiff purchased its land, that nuisance was actionable and could be stopped by an injunction.
E. What is the significance of the pending charge under the Environmental Protection Act?
294 Just as the trial was ending on the liability issue one of the plaintiffs, on the advice of counsel, swore out an information charging the defendants under s. 14 of the Environmental Protection Act.
295 This was presumably done to trigger the provisions of s. 2 of the Farming and Food Protection Act, 1998.
296 The allegations in the information relate only to the period March 1, 1999 to May 30, 1999.
297 I have decided that the evidence about this charge should be admitted.
298 In view of my conclusion as to the meaning of s. 2, I have also concluded that that proceeding is of no relevance in determining whether the plaintiffs may sue in nuisance since the right to sue is not conditional upon proving such an offence. It is relevant to whether or not the court could issue an injunction. However, in the circumstances of this case I would not issue an injunction simply because the plaintiffs have commenced a prosecution. I note that the statute would not permit the court to issue an injunction if there were a conviction.
F. Did the defendants lose the protection of the Farm Practices Protection Act up to May 10, 1998 because they were violating the Environmental Protection Act?
299 As noted, under the previous statute the operator was protected from a civil action based on the law of nuisance only if certain conditions are satisfied. One condition was that the operator "does not violate ... the Environmental Protection Act".
300 The plain meaning of the statute is that the operator cannot rely on the statutory protection if the operator's conduct constituted an offence under the Environmental Protection Act. It is not necessary that a charge be laid or that any conviction be obtained. It is sufficient if the court in the civil action finds that the conduct was a violation of the Act.
301 The plaintiffs allege that the defendants were in violation of the Environmental Protection Act during the period 1994 to 1998 when the Farm Practices Protection Act was in force. They rely on these provisions of the Environmental Protection Act:
s. 14(1) Despite any other provision of this Act or the regulations, no person shall discharge a contaminant or cause or permit the discharge of a contaminant into the natural environment that causes or is likely to cause an adverse effect.
(2) Subsection (1) does not apply, in respect of an adverse effect referred to in clause (a) of the definition of "adverse effect" in subsection 1(1), to animal wastes disposed of in accordance with normal farm practices.
s. 1(1) In this Act, "adverse effect" means one or more of,
(a) impairment of the quality of the natural environment for any use that can be made of it,
(b) injury or damage to property or to plant or animal life,
(c) harm or material discomfort to any person,
(d) an adverse effect on the health of any person,
(e) impairment of the safety of any person,
(f) rendering any property or plant or animal life unfit for human use,
(g) loss of enjoyment of normal use of property, and
(h) interference with the normal conduct of business.
"contaminant" means any ... gas, odour ... or combination of any of them resulting directly or indirectly from human activities that may cause an adverse effect.
302 The Environmental Protection Act does not define "normal farm practices" as used in subsection 14(1).
303 The plaintiffs allege that the defendants violated ss. 14(1) by discharging odours into the environment which had the adverse effects mentioned in paragraphs 1(1)(c),(d),(f), (g) and (h).
304 The defendants say that if the defendants were following normal farm practices then they could not be found to be committing an offence under s. 14 because this would be inconsistent with the policy of the Farm Practices Protection Act. As I have already explained, I disagree. That statute did not provide any immunity under the Environmental Protection Act for normal farm practices. Nor does the current statute. The speeches of the Ministers of Agriculture when introducing both acts repeatedly made the point that the statutes were not intended to protect farmers from environmental prosecution. Also, the specific exemption in ss. 14(2) of the EPA must mean that if the adverse effect is one under a paragraph other than (a), the person causing the effect is not exempt from prosecution.
305 The defendants also rely on the exemption in ss. 14(2) of the EPA. It only provides protection where the adverse effect complained of is one falling under paragraph 1(1)(a) and the plaintiffs do not rely on that kind of adverse effect.
306 The parties agree that offences under the EPA are strict liability offences which do not require proof of any mental element or fault or blameworthiness.
307 Since this is a civil action it is only necessary to prove that GMF was in violation of the EPA on a balance of probabilities; however, I am satisfied beyond a reasonable doubt that it violated ss. 14(1). GMF discharged the odours which caused an adverse effect on the plaintiffs within the meaning of paragraphs 1(1)(c) and (g). The discomfort was substantial, would be material to any reasonable person and was entirely foreseeable. I have considered all the circumstances including the intensity and frequency of the odours, the consequences of the discomfort and the character of the neighbourhood. The plaintiffs also suffered very substantial loss of enjoyment of the normal use of their properties.
308 The defendants, however, rely on the defence of due diligence. They contend that the court must consider if the defendants exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system. They contend that the court must take into account the many factors listed in R. v. Commander Business Furniture Inc. [1992] O.J. No. 2904 (Provincial Division). I have done so.
309 I find that the defendants have not proved that they took every precaution reasonable in the circumstances up to the spring of 1995 but have proved they did so after that time. Consequently, the defendants have made out a defence of due diligence only for the period after the spring of 1995.
310 Before the spring of 1995 the defendants were experimenting with the composting formula without any reasonable investigation or testing of the changes beforehand and they continued in the face of numerous complaints. They failed to monitor the odours. They did not investigate remedial actions in advance or reasonably promptly.
311 Consequently, I find there was a violation of the EPA during the period from the commencement of the operation until the spring of 1995. Those guilty of the violation included GMF and, pursuant to s. 194, Mr. Snobelen, and Mr. Clay Taylor. The evidence clearly establishes their knowledge and ability to control the discharges. Mr. Snobelen was the effective leader of the enterprise and Mr. Taylor was in charge of the composting.
5. Are the defendants liable in negligence?
312 The plaintiffs' counsel took the position that the plaintiffs' primary claim was in nuisance and that they relied on negligence only in the alternative. The plaintiffs relied on a breach of duty under s. 14 of the EPA as the basis of the negligence claim.
313 The amended statement of claim alleges in paragraph 58 that the partnership was negligent in the design and operation of the farm. In my view this is no more than a repetition of the claim in nuisance. Paragraph 60 alleges that the defendants were negligent in selecting this site for a mushroom farm. There is no evidence to support this other than that relating to nuisance.
314 In my view the reliance on s. 14 in paragraph 59 does not add any separate ground of negligence to the pleading. In my view it does not create a civil cause of action separate from nuisance.
315 I conclude there is no case made out in negligence.
6. Are the directors of the corporate defendants personally liable?
316 The plaintiffs contend that in addition to the partnership, the individual defendants who are directors of various corporations should be held liable in nuisance.
317 The law on this subject was recently explained in ADGA Systems International Ltd. v. Valcom Ltd. [1999] O.J. No. 27 (C.A.). In that case the court confirmed these principles:
1. "employees, officers and directors will be held personally liable for tortious conduct causing physical injury, property damage, or a nuisance even when their actions are pursuant to their duties to the corporation" (at para. 26)
2. A plaintiff must plead a reasonable cause of action against the individual. To do so, the statement of claim must "single out their activities as individuals" and "the facts giving rise to personal liability" must be "specifically pleaded". (at para. 37 and 38)
318 There is evidence in this case to support a finding of personal liability in nuisance against some of the individual defendants but the amended statement of claim does not permit such a finding because it does not comply with the above principles.
319 The only paragraphs of the amended statement of claim which relate to a claim in nuisance against the individual defendants are paragraphs 56 to 57D and 62 to 65. Paragraph 56 refers to s. 194 of the EPA which states:
194(1) Every director or officer of a corporation that engages in an activity that may result in the discharge of a contaminant into the natural environment contrary to this Act or the regulations has a duty to take all reasonable care to prevent the corporation from causing or permitting such an unlawful deposit, addition, emission or discharge.
That section creates quasi-criminal liability but does not create any civil liability. Failing to stop a corporation from creating a nuisance is not a tort in the category outlined in ADGA because the court there ruled that an omission was not the basis of civil liability; the court ruled that it is necessary that the director personally perform an act which is tortious. The amended statement of claim does not allege that the individuals participated in causing the nuisance or that they directed it.
320 Paragraphs 57 to 57D do no more than allege that the individuals breached s. 194. They do not allege the breach of any civil duty. There are absolutely no allegations of fact to support the allegations.
321 Paragraphs 62 to 65 contain general allegations against "the Defendants". They state:
62. The Plaintiffs claim against the Defendants in nuisance for the interference the Defendants have caused with the use and enjoyment of the Plaintiffs' properties.
63. The Plaintiffs submit that the damages they have sustained are a reasonably foreseeable consequence of the Defendants' actions and as the operators of the mushroom operation, they are responsible for the damages sustained by the Plaintiffs as a result of these actions.
322 In view of the fact that there are numerous corporate and individual defendants with a wide variety of roles in the mushroom farm, this pleading is not sufficient to satisfy the requirements laid down in ADGA. The amended statement of claim generally alleges nuisance against the "Defendant Partnership" as revealed by the references to only that entity in paragraphs 13A, 19, 20, 22, 24, and 57.
323 The amended statement of claim does not permit the plaintiffs to succeed against the individual defendants in nuisance.
CONCLUSION ON LIABILITY
324 I conclude that the plaintiffs have proved that GMF is liable in nuisance for producing offensive odours from the commencement of its operations. The plaintiffs other than John and Nadia Lennox (whose claims were abandoned) are entitled to judgment against GMF which is a partnership and therefore each of these partners are also liable: TRI GRO Enterprises Ltd. and G.M.F. PART 2. In addition the following partners of G.M.F. PART 2 are also liable: Brent Taylor Holdings Ltd., Rick Campbell Holdings Ltd., and Snobelen Mushrooms Ltd.
325 As I have explained, the plaintiffs are entitled to a remedy in damages but not to an injunction.
RESUMPTION OF THE TRIAL
326 In the peculiar circumstances of this case the parties all asked at the outset that the trial proceed first on liability and then after I made a finding on liability, it would continue on the issue of damages. It was agreed that the evidence adduced in the first stage would also apply to the damages issue but that the parties could adduce additional evidence from the same or other witnesses. I agreed to this.
327 Consequently, no judgment shall issue until I have heard the remainder of the evidence and made my findings on damages. The trial shall proceed on a date to be fixed at the attendance on August 31, 1999 when the parties will be attending for a hearing of a related matter. On August 31 I propose to set a timetable for the delivery of any expert reports and ask counsel to make enquiries and come prepared to speak to a timetable for any further production or other matters which must be completed before the resumption of the trial.
FERGUSON J.
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