Organic farmers in Nova Scotia filed a lawsuit against a
neighbouring farm for damages allegedly caused by a herbicide which
drifted onto their property. In particular, the plaintiffs claimed
that the herbicide caused damage to their crops, the miscarriage of
four horses, and personal injury.
The defendant farmer claimed immunity under section 10(1) of
Nova Scotia's Farm Practices Act which protects farmers from
any civil action in "nuisance, negligence or otherwise, for
any odour, noise, dust, vibration, light, smoke or other
disturbance resulting from an agricultural operation." The
action was stayed pending a ruling from the Farm Practices Board as to whether the
activities in question constituted "normal farm
In January 2013, the Farm Practices Board ruled that the
defendants had not acted in a manner inconsistent with "normal
farm practice." The Supreme Court of Nova Scotia considered
the matter, as well as whether herbicidal drift is an "other
disturbance" under the Act. The court noted that the issue had
not been previously addressed, although there is case law in other
provinces (Saskatchewan, Manitoba and P.E.I.) dealing with actions
for damages caused by herbicidal drift. None of those
decisions, however, consider herbicidal drift in the context of
provincial right-to-farm legislation. Ultimately, the case was
dismissed because the court found that "herbicidal overspray
or drift and contaminated run-off from ditching, are 'other
disturbances' resulting from an agricultural operation as
contemplated by section 10(1)(a) of the Act." Nauss
v. Waalderbos, 2014 NSSC 245, at para. 17.
Ontario has a similar Act called the Farm Practices Protection Act. Under section
2(1) of the Act, farmers are protected from claims in nuisance,
unless the farmer has violated any land use control law, the
Environmental Protection Act, the Pesticides Act, the Health
Protection and Promotion Act, or the Ontario Water Resources Act.
Notably, however, the Farm Practices Protection Act does not
provide immunity from claims sounding in negligence or any other
claim aside from nuisance.
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