Hill and Hill Farms Ltd. v. Bluewater (Municipality), (2006) 217 O.A.C. 42 (CA)

• Judge: Weiler, Blair and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: March 10, 2006
• Jurisdiction: Ontario
• Citations: (2006), 217 O.A.C. 42 (CA)

Hill & Hill Farms Ltd. v. Bluewater (2006), 217 O.A.C. 42 (CA)

MLB headnote and full text

Temp. Cite: [2006] O.A.C. TBEd. SE.036

Hill and Hill Farms Ltd. (applicant/appellant) v. The Municipality of Bluewater (respondent in appeal)

(C43637)

Indexed As: Hill and Hill Farms Ltd. v. Bluewater (Municipality)

Ontario Court of Appeal

Weiler, Blair and Rouleau, JJ.A.

September 18, 2006.

Summary:

The applicant applied to the Normal Farm Practices Protection Board pursuant to s. 6 of the Farming and Food Production Protection Act (FFPPA) for a determination that the minimum distance separation requirements of the Municipality of Bluewater Zoning By-Law No. 22-1985 restricted the applicant's ability to carry on a normal farm practice. The Board concluded that a proposed expansion of the applicant's hog operation was not a normal farm practice, but that the proposed expansion would be consistent with a normal farm practice if the applicant made specific modifications. One of the modifications contemplated by the Board was a 50% reduction of the separation distances required by the policy statement MDS II. The Municipality appealed from the Board's decision.

The Ontario Divisional Court, in a decision reported at 195 O.A.C. 1, allowed the appeal and set aside the Board's decision. The court held that the term "municipal bylaw" in s. 6(1) of the FFPPA did not include a zoning bylaw and the Board therefore had no jurisdiction to determine whether a zoning bylaw restricted a normal farm practice. The applicant appealed.

The Ontario Court of Appeal dismissed the appeal. The court held that the Divisional Court erred in interpreting the words "municipal bylaw" in s. 6(1) of the FFPPA as excluding a zoning bylaw. The Board therefore had jurisdiction to determine whether the zoning bylaw in issue restricted a normal farm practice. However, the court went on to review the Board's decision on a standard of reasonableness and concluded that the Board's decision was unreasonable. Pursuant to s. 9 of the FFPPA, the Board's decisions had to be consistent with the Minister of Agriculture's directives, guidelines or policy statements. A reduction of the required setback distance by half was not consistent with the MDS II guidelines.

Land Regulation - Topic 3459

Land use control - Agricultural land protection - General principles - Land protection commissions - Jurisdiction and powers - Section 6(1) of the Farming and Food Production Protection Act provided that "No municipal bylaw applies to restrict a normal farm practice carried on as part of an agricultural operation" - The Ontario Divisional Court held that the term "municipal bylaw" in s. 6(1) did not include a zoning bylaw and the Normal Farm Practices Protection Board therefore had no jurisdiction to determine whether a zoning bylaw restricted a normal farm practice - The Ontario Court of Appeal applied the modern approach to statutory interpretation and held that the Divisional Court erred in interpreting the words "municipal bylaw" as excluding a zoning bylaw - The application of administrative law principles also led to the conclusion that the Board, in considering whether a farm practice was a normal farm practice, had jurisdiction to deal with a municipality's zoning bylaw - See paragraphs 15 to 34.

Land Regulation - Topic 3459

Land use control - Agricultural land protection - General principles - Land protection commissions - Jurisdiction and powers - The applicant applied to the Normal Farm Practices Protection Board pursuant to s. 6 of the Farming and Food Production Protection Act (FFPPA) for a determination that the minimum distance separation requirements of a municpality's zoning bylaw restricted the applicant's ability to carry on a normal farm practice - The Board concluded that a proposed expansion of the applicant's hog operation was not a normal farm practice, but that the proposed expansion would be consistent with a normal farm practice if the applicant made specific modifications - One of the modifications contemplated by the Board was a 50% reduction of the separation distances required by the policy statement MDS II - The Ontario Court of Appeal held that the Board's decision was reviewable on a standard of reasonableness and that its decision was unreasonable -Pursuant to s. 9 of the FFPPA, the Board's decisions had to be consistent with the Minister of Agriculture's directives, guidelines or policy statements - A reduction of the required setback distance by half was not consistent with the MDS II guidelines - See paragraphs 35 to 56.

Land Regulation - Topic 3460

Land use control - Agricultural land protection - General principles - Land protection commissions - Judicial review - [See second Land Regulation - Topic 3459 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See first Land Regulation - Topic 3459 ].

Words and Phrases

Municipal by-law - The Ontario Court of Appeal held that the term "municipal by-law" in s. 6(1) of the Farming and Food Production Protection Act, S.O. 1998, c. 1, included a zoning bylaw - See paragraphs 15 to 34.

Cases Noticed:

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 16].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, refd to. [para. 16].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1, refd to. [para. 16].

Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84; 280 N.R. 268, refd to. [para. 16].

Contino v. Leonelli-Contino, [2005] 3 S.C.R. 217; 341 N.R. 1; 204 O.A.C. 311, refd to. [para. 16].

Canada 3000 Inc. (Bankrupt), Re (2006), 349 N.R. 1; 212 O.A.C. 338; 2006 SCC 24, refd to. [para. 16].

Pyke et al. v. Tri Gro Enterprises Ltd. et al. (2001), 148 O.A.C. 307; 55 O.R.(3d) 257 (C.A.), refd to. [para. 23].

Tranchemontagne v. Disability Support Program (Ont.) et al. (2006), 347 N.R. 144; 210 O.A.C. 267; 2006 SCC 14, refd to. [para. 26].

Peacock v. Norfolk (County) et al. (2006), 213 O.A.C. 347 (C.A.), refd to. [para. 27].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301, refd to. [para. 28].

Paul v. Forest Appeals Commission (B.C.) et al., [2003] 2 S.C.R. 585; 310 N.R. 122; 187 B.C.A.C. 1; 307 W.A.C. 1, refd to. [para. 28].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 223 D.L.R.(4th) 577, refd to. [para. 35].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 39].

Statutes Noticed:

Farming and Food Production Protection Act, S.O. 1998, c. 1, sect. 6(1) [para. 1]; sect. 6(3) [para. 31]; sect. 9 [para. 49].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 15].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 223 [para. 22].

Counsel:

Anne-Marie Tymec and Michelle Kropp, for the appellant;

Valerie M'Garry, for the respondent;

John M. Buhlman and Megan Ferrier, for the intervenor, Ontario Pork Producers Marketing Board;

William J. Manuel and Lise Favreau, for the intervenor, Ministry of the Attorney General for Ontario.

This appeal was heard on March 10, 2006, before Weiler, Blair and Rouleau, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Weiler, J.A., and was released on September 18, 2006.