Canada: Agricultural Law Netletter - July 21, 2018

HIGHLIGHTS

  • The Ontario Superior Court of Justice, Divisional Court, has dismissed an application for judicial review of a municipal bylaw which exempted "vehicles supporting agricultural business" from a rush hour ban for heavy trucks on a ferry. The Court held that municipal councillors were entitled to rely on a legal opinion provided by municipal staff to the effect that a failure to exempt farm vehicles might violate the Ontario Farming and Food Production Protection Act, 1998, which provides that no "municipal bylaw applies to restrict a normal farm practice carried on as part of an agricultural operation". (Sorensen v The County of Frontenac, CALN/2018-018, [2018] O.J. No. 3357, Ontario Superior Court of Justice)

NEW CASE LAW

Sorensen v The County of Frontenac;

CALN/2018-018,

Full text: [2018] O.J. No. 3357;

2018 ONSC 3912,

Ontario Superior Court of Justice,

Myers, J, Conway and Sheard, JJ,

June 21, 2018.

Right to Farm Legislation -- Restrictions on Use of Agricultural Vehicles.

Four residents of the County of Frontenac (the "Applicants") applied to the Ontario Superior Court of Justice for the judicial review of a decision of the Council of the County of Frontenac (the "Council") made on November 16, 2016 to enact a bylaw which exempted agricultural vehicles from the restrictions on heavy vehicle use of the Howe Island Ferry during rush hour traffic (the "Ferry").

As a result of the exemption, the bylaw opened the Ferry to agricultural vehicles during rush hour. Council had concluded that the bylaw amendment was required because any restriction to agricultural transportation could constitute a contravention of the Ontario Farming and Food Production Protection Act, 1998 (the "FFPPA").

The question of access to the Ferry by vehicles associated with agriculture in the County of Frontenac had been a source of friction between agriculture and other residents for some time. In 2003 the Municipality had enacted bylaw restrictions against heavy vehicles using the Ferry during rush hour.

In 2007 a lobbying effort to have the 2003 restrictions appeal resulted in some easing of these restrictions.

Further lobbying by agricultural businesses in 2016 resulted in the amendment which exempted "vehicles supporting agricultural business".

Section 6 of the FFPPA provides that:

[9] .[n]o municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation."

The Applicants argued that Council had improperly fettered its discretion in passing the bylaw due to a misapprehension of the law, and had otherwise declined its jurisdiction by improperly determining that the restriction of agricultural traffic was illegal. The Applicants also argued that the removal of the restrictions for agricultural vehicles were void for vagueness.

Decision: Myers, J (Conway and Sheard, JJ concurring) dismissed the application for judicial review at para. 18.

Myers, J observed [at para. 9]:

[9] Section 6 of the FFPPA provides that [n]o municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation." Under the statute, farmers who are affected by a municipal bylaw that restricts a normal farm practice may apply to the Normal Farm Practices Protection Board. That tribunal then has to determine whether a practice is a normal farm practice, and, if so, the tribunal can grant a farmer an exemption from a bylaw that restricts the practice.

Myers, J also observed that as a result of their review of the FFPPA issue with staff and

legal counsel, the Mayor and another councillor were quoted as saying that Council was required to change the bylaw restrictions so as to comply with the FFPPA [at para. 10].

Myers, J further observed [at para. 13 and 14] that Council had the authority to pass the bylaw in question, and that Courts are prohibited from quashing or reviewing bylaws on the basis that bylaws are unreasonable. Courts can only intervene where a bylaw is illegal or has not been passed in good faith.

Myers, J then concluded [at para. 15]:

[15] In light of these statutory provisions, even if Council was incorrect in its determination that the 2003 Restrictions contravened the FFPPA, it remained within the Council's jurisdiction to change its bylaw restrictions and to ease the restrictions that it has imposed in 2003. I see no basis in this case for the court to inquire into the correctness of the legal opinion which might have been considered by Council. The correctness of the opinion would not affect Council's jurisdiction to ease the 2003 Restrictions that it had imposed.

Myers, J also concluded that the Applicants failed to establish that Council had fettered its discretion. There was no evidence that Council had arrived at the meeting having already made an irreversable decision. The Mayor and councillors were entitled to be guided by legal opinions obtained from its staff. Legal opinions were a factor they were entitled to balance or weigh in arriving at their voting decision [at para. 16].

Finally, Myers, J concluded that the phrase "vehicles supporting agricultural business" was intelligible, with a meaning that was readily debatable before a Court, and that it was not necessary for the bylaw to have absolute certainty [at para. 17].

Originally published in LexisNexis

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