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Citation: |
Lubchynski v. Farm Practices Board |
Date: 20040423 |
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2004 BCSC 657 |
Docket: 58632 |
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Registry: Kelowna |
IN THE SUPREME COURT OF BRITISH COLUMBIA
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Oral Reasons for Judgment |
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BETWEEN: |
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ALEX LUBCHYNSKI and LOUISE LUBCHYNSKI
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APPELLANTS |
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AND: |
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FARM PRACTICES BOARD |
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RESPONDENT |
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Counsel for the Appellants (appearing by telephone):
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M.F. Welsh |
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Counsel for the Respondent (appearing by telephone):
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F.A.V. Falzon |
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Place and Date of Hearing: |
Kelowna, B.C. April 23, 2004 |
[1] THE COURT: Thank you. On November 2, 2001, a number of neighbours of the appellants made a complaint to the Farm Practices Board (the “Board” or the “F.P.B.”) about the appellants’ use of a propane cannon to protect their organic vineyards from bird predation. The F.P.B. was created in 1996 pursuant to the Farm Practices Protection Right to Farm Act, R.S.B.C. 1996, c. 131, (the “F.P.P.A.”). If a complaint is received and cannot be settled, the Board must establish a panel to conduct a hearing into the complaint.
[2] The panel established to hear the complaint in this matter held a hearing on June 27, 2002, and issued a decision on August 12, 2002. Following written submissions, the panel issued a supplementary decision on June 15, 2003. The effect of the decisions is that the appellants have been ordered to use at least some netting of their crop as part of their bird predation control, which may also continue to include the use of the propane cannon.
[3] The appellants appeal from that portion of the decision which requires them to use some degree of netting. The appeal is brought pursuant to s. 8 of the F.P.P.A., which provides that “the complainant or farmer affected by the decision may appeal the decision to the Supreme Court on a question of law or jurisdiction”.
[4] The appellants submit that the F.P.B. exceeded its jurisdiction by ordering them to implement a netting program, and that there was no, or insufficient, evidence to support a finding that netting is necessarily part of a bird predation control program.
[5] The respondent says that the F.P.P.A. delegates to the F.P.B., and not to the courts, the task of determining whether a farmer's practice constitutes normal farm practice. If the F.P.B. determines the practice is not normal farm practice, says the respondent, it must either order the farmer to cease the practice or order the farmer to the modify the practice to be consistent with normal farm practice.
[6] In this case, the respondent submits that the decision of the F.P.B. is entitled to considerable deference from the court. The court should not, according to the respondent, re‑weigh the evidence, nor substitute its discretion for that of the F.P.B., given the Board's particular expertise.
[7] The first issue to be addressed is the standard of review. There are three possible standards of review of decisions made by administrative tribunals: namely correctness, reasonableness simpliciter, and patent unreasonableness (see Law Society of New Brunswick v. Ryan, 2003 SCC 20 at paras. 24-26).
[8] In determining the appropriate standard, the court must take a pragmatic and functional approach: Law Society of New Brunswick v. Ryan, supra; Pushpanathan v. Canada (Minister of Citizenship and Immigration (1998), 160 D.L.R. (4th) 193 (S.C.C.). The degree of deference is dependent, to a large measure, on the expertise or specialized nature of the tribunal. As was said by the Supreme Court of Canada in Pushpanathan, supra, at p. 211:
If a tribunal has been constituted with a particular expertise with respect to achieving the aims of an Act, whether because of the specialized knowledge of its decision-makers, special procedure, or non-judicial means of implementing the Act, then a greater degree of deference will be accorded.
[9] The actual issue before the tribunal must be considered in determining the appropriate standard of review. Some provisions within the same legislation may require greater curial deference than others. For example, if a tribunal is called upon to decide a question of statutory interpretation, the tribunal is, of course, in no better position than the court, and accordingly the standard of review will be correctness. However, where the question under consideration falls within the scope of the specialized expertise of the tribunal, a greater degree of deference will be called for: Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28 at pp. 12-16.
[10] In this case, the issue before the F.P.B. was whether the appellants' use of a propane cannon as its sole method of bird predation control was normal farm practice. The determination of normal farm practice is not, I conclude, a matter of statutory interpretation. The F.P.B. has been constituted by the legislature as a specialized board. Its members include all members of the B.C. Marketing Board. It is empowered by its legislation to use processes not available to the court in the resolution of a complaint. Its initial mandate is to attempt to resolve the dispute through consultation and in that process, it may also obtain advice from persons knowledgeable about normal farm practices. Hearings may be conducted informally and the panel may, in its discretion, receive evidence which would not be admissible in a court of law. Specialists and consultants may be retained directly by the Board. The Board may also be ordered to study any matter related to farm practices and to report findings and recommendations to the Minister. If the Board finds that a farmer's practice is not normal farm practice, it may order the farmer to modify his practice in a specified manner, including in manners not available by way of a remedy which could be granted by the court.
[11] Deference has been shown to the expertise of the F.P.B. by this court. In Central Saanich (District) v. Kimoff, 2002 BCCA 169, the B.C. Supreme Court adjourned a summary trial in order to allow the parties to obtain a decision from the F.P.B. on a question of normal farm practice saying:
The municipality should exhaust its administrative remedies. The court would have, at least before embarking on argument, which will be identical to the one I have just heard, the advantage of a Board set up by government with some expertise in the field...
Leave to appeal the decision to adjourn the summary trial was dismissed: (2002 BCCA 169).
[12] In Ontario, which has legislation similar to the F.P.P.A., the Court of Appeal in Pyke v. Tri Gro Enterprises Ltd. (2001), 55 O.R. (3d) 257 at pp. 278 and 281 found that, absent special circumstances, questions of whether, in the context of a nuisance action, a disturbance constitutes a “normal farm practice” should generally be left for the Board to determine.
[13] In this case, as I have said, the Board was called upon, by the complaint made, to decide whether the use of a propane cannon as a sole effort at bird predation control was a normal farm practice. That issue required the Board to consider, as defined by the F.P.P.A. normal farm practice, namely, the “proper and accepted customs and standards as established and followed by similar farm businesses under similar circumstances”.
[14] The F.P.B., having heard more than twenty witnesses and having received submissions from several intervenors, decided that it was not a normal farm practice. That decision is entitled to significant deference, and indeed the appellants concede the correctness of that part of the Board's decision. Having made that determination, namely, that the practice was not normal farm practice, the legislation compelled the Board to do one of two things, either order the appellants to cease using the propane cannon, or order the appellants to modify their practice. The Board chose to do the latter.
[15] The appellants say that the Board could have correctly, and squarely within its jurisdiction, ordered the appellants to modify their practice by modifying the use of the cannon or possibly even by ordering the appellants to combine the use of the cannon with other means of bird predation control. However, the appellants say that by choosing one specific means, namely netting, and ordering the appellants to modify their practice to include netting, the Board exceeded its jurisdiction.
[16] I cannot accept that submission. The Act expressly gives the Board power to make orders requiring modification to a practice. That jurisdiction is limited only by the requirement that the ordered modification be consistent with normal farm practice. The Board's decision on such an issue is, because of the Board's expertise, entitled to significant deference. The test on review is not whether this court would have arrived at the same conclusion. I conclude that unless the Board's decision is patently unreasonable, for example if it were completely unsupported by any evidence, this court cannot simply substitute its discretion for the Board's discretion, nor re-weigh and re-evaluate the evidence heard by the Board for the purpose of reaching its own conclusion.
[17] I am satisfied that the Board was not clearly wrong in determining that, if the appellants were going to use a propane cannon, they had to use the cannon in a specified manner and in conjunction with other specified methods of bird predation. There was some evidence from which the Board could reach its conclusion. The Board has not, in its original decision nor in its supplementary decision, directed the appellants to net their entire crop. The Board has, indeed, left it open for the appellants to design their own program and then to re-attend before the Board to have their proposed netting program assessed.
[18] The Board was clearly, in hearing this matter and issuing its decisions, engaged in the very task the legislation envisions, namely, attempting to find a balance between the needs of the farmers on the one hand and the needs of the surrounding residential neighbours on the other. In finding that balance the Board was, I find, less prescriptive in its decision than it could have been. There was evidence to support the decision and the decision was, I am satisfied, squarely within the Board's jurisdiction.
[19] I can find no error in law or in jurisdiction, and the decisions were not patently unreasonable. Consequently, the appellants' appeal is dismissed.
[20] Pursuant to the agreement between counsel and on the submissions before me, there will be no costs awarded to either the appellants or the respondent. Anything arising?
[21] MR. WELSH: Mr. Welsh here. No, My Lady, I can't think of anything.
[22] MR. FALZON: Would we contact the court registry for purposes of the transcript, My Lady?
[23] THE COURT: Yes, Mr. Falzon. Again, I would like to thank both counsel for the great assistance provided to me both in the written material and in the oral submissions. Thank you, counsel.
[24] MR. WELSH: Thank you, My Lady.
[25] MR. FALZON: Thank you, My Lady.
“A.J. Beames, J.”
The Honourable Madam Justice A.J. Beames