The interplay between farms and neighbouring properties is not
an easy one. Many normal farm activities may involve unpleasant
noises and odours that impact neighbouring properties. Conceivably
these activities could constitute an actionable nuisance. A
nuisance is an activity which unreasonably interferes with a
person's use or enjoyment of his or her land; where a court
finds that a nuisance exists it can grant an injunction ordering
that the complained of activity cease, or grant damages to
compensate for the loss of enjoyment of land. Most Canadian
provinces have taken steps to protect farmers from these complaints
by instituting Right to Farm legislation1. which
protects "normal farm practices" from nuisance complaints
by neighbouring property owners.
The opposing concern is that the practices of neighbouring
property owners create a nuisance that interferes with farming
practices. The decision in 1631370 Ontario Inc v 805352 Ontario
Inc, 2012 ONSC 2271 ("1631370 Ontario Inc")
occurs in this context.
In 1631370 Ontario Inc the plaintiff is the owner of a
property whose tenant raises Great Grandparent Turkeys (rare and
vital breeding stock) The defendant recently purchased a
neighbouring farm and plans to raise commercial breeder-boiler hens
(the operations are roughly 780m from one another). The
plaintiff's tenant terminates its tenancy based on a concern
that the defendant's operation could emanate air born pathogens
and infect the tenant's stock. The plaintiff brought an action
in nuisance, negligence and intentional interference with economic
relations. This decision arises from an application for summary
dismissal of the action.
The defendant's farm is in accordance with zoning by-laws
and the minimum distance rules of the Ministry of Agriculture, Food
and Rural Affairs. The plaintiff has expert evidence that there is
a substantial increase in disease transmission where the separation
is less than 1000m.
The court weighs four factors in determining whether or not an
actionable nuisance exists; the sensitivity of the plaintiff, the
severity of the interference, the character of the neighbourhood,
and the utility of the defendants conduct.
Ultimately, the court finds that there is no actionable nuisance
and the application for summary dismissal is successful. In doing
so, the court recognizes the social utility of the defendant's
commercial breeder-boiler hens operation, and describes the
plaintiff's claim as unusually sensitive particularly given
that the severity of harm has yet to be determined. The court also
takes note that the farms are located in an agricultural district,
comply with the relevant regulations, and that it is not the
court's function to impose set-back standards on poultry
1. Farm Practices Protection (Right to Farm)
Act, RSBC 1996 c 131, Agricultural OperationsrPractices
Act, RSA 2000 c A-7, The Agricultural Operations Act,
SS 1995, c A-12.1 amended SS 2013, c 27, Farming and Food
Production Protection Act, 1998 SO 1998 c 1, amended 2006 c
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