VINCENT GUIMOND, RAYMOND NICHOLS, RAYMOND ARSENEAULT, LOUISE BRIDEAU, JOANNE ROBICHAUD, CLAUDETTE ROBICHAUD, ARINA HÉBERT Plaintiffs - v. -, 2023 NBKB 211

IN THE COURT OF KING'S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON File: MC-447-2023 Vincent Guimond et al. v. Omera Shells Inc., 2023 NBKB 211 BETWEEN: VINCENT GUIMOND, RAYMOND NICHOLS, RAYMOND ARSENEAULT, LOUISE BRIDEAU, JOANNE ROBICHAUD, CLAUDETTE ROBICHAUD, ARINA HÉBERT Plaintiffs - and - OMERA SHELLS INC., Defendant DECISION BEFORE: Madam Justice Christa Bourque AT: Moncton, New Brunswick DATE OF HEARING: November 10, 2023 DATE OF WRITTEN DECISION: December 5, 2023 APPEARANCES: Michael B. Murphy, K.C., and Vincent Savoie, for the Plaintiffs

Edwin Ehrhardt, K.C., and Juliette Cormier for the Defendant BOURQUE, J. OVERVIEW [ 1 ] The seven plaintiffs each reside near the defendant's shell processing facility and have filed a nuisance claim for damages they say are caused by the unpleasant smell, noise, and light pollution coming from the defendant's plant.

The plaintiffs are now requesting an interlocutory injunction that would halt the defendant's operations. [ 2 ] The defendant opposes the injunction stating the plaintiffs cannot sue in nuisance but rather must proceed with an application under the Agricultural Operations Practices Act , RSNB 2011, c 107 (the “ Act ”). [ 3 ] In the alternative, the defendant contends that the proposed injunctive relief would result in the respondent's business closure. Accordingly, it is submitted that the injunction ought not to be granted.

FACTS [ 4 ] In June 2023, the plaintiffs issued a Notice of Action with Statement of Claim, alleging that the defendant is liable for nuisance damages caused by activities at the defendant's shellfish processing facility. According to the plaintiffs, each of them resides in close proximity to the facility and has been subjected to noxious odours, excessive noise and light pollution from the defendant's operations since 2016. They argue that the defendant's activities have unreasonably interfered with the quiet enjoyment of their property.

The plaintiffs are seeking compensation for general damages due to pain and suffering, as well as special damages for the reduction in the value of their property. Additionally, they request an injunction to prevent the defendant from continuing its operations. [ 5 ] In support of this motion, the plaintiffs have submitted their own affidavits, as well as affidavits of other residents and individuals who work in the area. All of the affiants have described their experiences resulting from the defendant's activities.

Several have mentioned an unpleasant smell that impedes their ability to open windows, use their air exchange systems, and enjoy outdoor activities. Others have expressed concerns about the noise disturbance and bright light emitted from the plant, which interrupts their sleep at night. [ 6 ] Evidence provided by teachers, a former principal and an athletic coach demonstrates that events at a nearby school had to be cancelled or modified due to the unpleasant odour emanating from the defendant's facility.

Similar evidence exists with regards to the daily operations of a local day care centre. [ 7 ] Additionally, certain individuals have reached out to the media over the years claiming that the defendant's actions have caused unbearable conditions. This has resulted in several news reports. [ 8 ] The defendant does not contest that its shell recycling activities emit an odour. Nonetheless, it denies that the odour has any detrimental impact on the plaintiffs' lives.

Additionally, it disputes that its operations result in any undue noise or light pollution, asserting that such emissions are not excessive. [ 9 ] In describing its operations, the defendant states that its current business consists of drying shellfish shells and processing them for organic fertilizer, chitin/chitosan extraction, and organic livestock feed. It claims that approximately half of its production is used for fertilizer and livestock feed.

The plant operates through the night, from 8 p.m. to 8 a.m. [ 10 ] According to the defendant, it has complied with all air quality requirements established by the Province and has received a permit to operate from the Minister of the Environment and Climate Change, which is valid until at least November 30, 2023. [ 11 ] The defendant contends that there are no toxicity concerns associated with its operations. Nothing is added to the shells during treatment, and the only other material produced during the process is steam.

Operations take place during the shellfish fishing season, and the plant is closed between December 15 and April 15. The defendant acquires shells from the seafood plants situated across the Province that would otherwise be dumped in landfills. [ 12 ] Several odour surveys were carried out by the Department of Environment and Local Government and presented in evidence by the defendant, which demonstrate that no odour was detected in the surroundings of the defendant's plant at the time of the surveys.

The surveys were executed during daylight hours when the plant was not running. [ 13 ] Tests were conducted to assess the noise and light pollution levels produced by the facility. The findings indicate that the noise levels are within acceptable limits, and the amount of light emitted is not excessive. [ 14 ] The defendant states that it has plans to upgrade the plant over the next few months with the intention of eliminating or at least significantly reducing the odour problem. The defendant hopes to secure funding shortly and aims to conclude the project by July 2024.

ISSUES 1) Can this injunction motion proceed, or must the plaintiffs first apply under

Section 16 of the Agricultural Operations Practices Act ? 2) If the matter can proceed, have the plaintiffs satisfied the three-pronged test for injunctive relief set forth in RJR-MacDonald ?

LAW AND ANALYSIS - Application of the Act [ 15 ] The defendant contends that this Court is not the appropriate forum for an injunction against the operation of its plant. It asserts that the Act 's scope covers its operations, affording immunity from certain nuisance claims. [ 16 ] The plaintiffs strongly object to this argument. They assert that the defendant brought it up at the eleventh hour and, furthermore, that the Act does not apply to the circumstances of this case since the defendant's actions do not qualify as farming or consist of an agricultural operation for farming purposes.

The argument presented is based on the assertion that the defendant's involvement in agricultural activities cannot be established solely on the basis that it produces, among its many products, a component for use in fertilisers and animal feed. [ 17 ] To address these arguments, an examination of the legislation's language is necessary. Section 2(1) of the Act says: 2

(1) A person who carries on an agricultural operation using acceptable farm practices is not liable in nuisance to any person for any odour, noise, dust, vibration, light, smoke or other disturbance resulting from the agricultural operation and shall not be prevented by injunction or other order of a court from carrying on the agricultural operation because it causes or creates odour, noise, vibration, dust, light, smoke or other disturbance that constitutes a nuisance. [ 18 ] Most importantly for this matter, “agricultural operations” are defined at

Section 1 and include the following: “agricultural operation” means an agricultural operation that is carried on for gain or reward or in the hope or expectation of gain or reward, and includes (activité agricole) (

a) the clearing, draining, irrigating or cultivation of land, (

b) the raising of livestock, including poultry, (

c) the raising of fur-bearing animals, (

d) the raising of bees, (

e) the production of agricultural field crops, (

f) the production of fruit and vegetables and other specialty horticultural crops, (

g) the production of eggs and milk, (

h) the operation of agricultural machinery and equipment, including irrigation pumps, (

i) the preparation of a farm product for distribution from the farm gate, including cleaning, grading and packaging, (

j) the on-farm processing of farm products for the purpose of preparing farm products for wholesale or retail consumption, (

k) the storage, use or disposal of organic wastes for farm purposes , (

l) the operation of pick-your-own farms, roadside stands, farm produce stands and farm tourist operations as part of a farm operation, (

m) the application of fertilizers, conditioners, insecticides, pesticides, fungicides and herbicides, including ground and aerial spraying, for agricultural purposes, or (

n) any other agricultural activity or process prescribed by regulation, that is carried on for gain or reward or in the hope or expectation of gain or reward. [emphasis mine] [ 19 ] Regarding the possibility of commencing an action in nuisance,

Section 16 states: 16 A person shall not commence an action in nuisance for any odour, noise, dust, vibration, light, smoke or other disturbance resulting from an agricultural operation unless the person has, at least 90 days previously, applied to the board under this Act for a determination as to whether the disturbance complained of results from an acceptable farm practice. [ 20 ] The Act describes “acceptable farm practices” as: “acceptable farm practice” means a practice that is carried on (pratique agricole admise)

(

a) in a manner consistent with proper and accepted customs and standards as established and followed by similar agricultural operations under similar circumstances, including the use of innovative technology used with advanced management practices, and (

b) in conformity with any standards set out in the regulations. [ 21 ] The defendant argues that its actions, which involve processing shells into fertiliser and feed for livestock, are covered by paragraph (

k) of the definition of "agricultural operations" under the Act , as it handles organic waste for use on farms. The defendant maintains that the plaintiffs are required to follow the procedural requirements specified in the Act before seeking any remedy from this Court. [ 22 ] Similar legislation exists in various forms in the other provinces. Unfortunately, while other provincial statutes have a

preamble outlining the purpose of the legislation, the Act does not. However, we can infer from the other statutes and the language of the New Brunswick legislation that its purpose is to protect those engaged in agricultural operations from being sued for nuisance. These are particular types of businesses that are bound to cause disturbances to their neighbors, including smell, noise, smoke, light, etc.

In many cases, these disturbances can only be controlled to a certain extent. [ 23 ] Upon a finding by the Board that the party is in compliance with "acceptable farm practices," a party engaged in agricultural operations is immune from nuisance actions arising from those operations and, importantly for this case, cannot be enjoined from continuing those operations. [ 24 ] The Act provides for an administrative regime under which the Farm Practices Review Board (in French “la Commission de revision de pratiques agricoles”) is responsible for reviewing applications from aggrieved parties, determining whether or not the disturbance is the result of an acceptable farm practice, and administering the dispute resolution process.

I note that

Section 20 deals with the circumstances under which the Board may refuse to consider an application or to make a decision. It can do so when, in its opinion:

a) the subject matter of the application is trivial

b) the application is frivolous or vexatious or is not in good faith c)the complaint has already been made before the Board and it has made a determination

d) the applicant does not have sufficient personal interest in the subject matter of the application [ 25 ] Regrettably, the Act offers limited guidance to the Court in determining whether a defendant's activities fall within its scope. Furthermore, there is little jurisprudence on the subject, and none in New Brunswick. Nevertheless, in my opinion, the Court should not decide that question at this early stage.

The Board, authorised by the Legislature, has the authority to determine whether an activity falls within the scope of the Act . [ 26 ] Public authorities or administrative boards play a crucial role in performing specialized functions for or in conjunction with the government.

Members who serve on their boards bring valuable skills, knowledge, expertise, experience, perspectives and commitment that are of benefit to the public sector. [ 27 ] It is assumed that the members of the Farm Practices Review Board possess adequate qualifications to determine the plaintiffs’ eligibility to pursue their complaint and, if so, to determine whether the operations complained of meet the requirements of acceptable farming practices. The Board has the authority to interpret its own statute and to consider issues with which it is particularly familiar.

Hence, it is aptly equipped to address the issues facing these parties. It is also uniquely qualified to decide the threshold question of whether the defendant is or is not engaged in "agricultural operations". [ 28 ] In the Alberta Court of Appeal case of Calgary (City) v. Alberta (Municipal Government Board) , 2008 ABCA 187 , the Court considered the issue of the expertise of a particular administrative body.

Though the issue at hand was the standard of review of the Board's decision under the Municipal Government Act (“MGA”) the following comments are relevant to this case: [20] The nature of the question in this appeal, whether a party is entitled to file a complaint, is a question of law involving the

interpretation of s. 460(3) of the MGA. This question involves the MGB interpreting its own statute, and typically will be subject to deference: Dunsmuir, at para. 54. Moreover, while the appeal involves an issue of law, it also requires consideration of policy issues, since a proper

interpretation of the MGA in this instance requires an understanding as to the effective functioning of the complaint process and considers the extent to which an assessed person or taxpayer has an interest in making a complaint of another person’s property assessment. The MGB is particularly familiar with such issues, and is well-suited to address these considerations…

[29] In the case of Canada (Minister of Citizenship and Immigration) v. Vavilov

(2019) SCC 63 at paragraph 29, the Supreme Courtof Canada also discussed the role of administrative decision makers when examining the standard to apply when courts review thesetypes of decisions. Although the legal context in which these remarks were made differs from the present case, they remain relevant: 29 Of course, the fact that the specialized role of administrative decision makers lends itself to the development of expertise andinstitutional experience is not the only reason that a legislature may choose to delegate decision-making authority.

Over the years, theCourt has pointed to a number of other compelling rationales for the legislature to delegate the administration of a statutory scheme to aparticular administrative decision maker.

These rationales have included the decision maker's proximity and responsiveness tostakeholders, ability to render decisions promptly, flexibly and efficiently, and ability to provide simplified and streamlined proceedingsintended to promote access to justice. [30] If the Board decides to hear the complaint and determines that the defendant is engaged in “agricultural operations” (and istherefore subject to the Act) and has fulfilled its obligations, the plaintiffs will not be entitled to the injunctive relief they seek in thismotion.

As a first step, therefore, the matter must be referred to the Board for consideration. [31] In the relatively recent case of Newhook v. Colliers (Town), 2020 NLSC 88 , the Newfoundland Supreme Court refusedto grant an injunction against the respondent because the Farm Practices Protection Act precluded it. Boone, J. had this to say atparagraphs 19, 20 and 23: [19] The common law of nuisance is judge-made law first developed in England as a means of resolving disputes in cases where alandowner claimed that their neighbour’s use of property interfered with the peaceful enjoyment of their own.

As the law of nuisancedeveloped it recognized that a landowner’s right to peace and the physical integrity of property could not be allowed to be absolute in anycivil society; property rights must be limited not only by physical boundaries of property but also by bounds of reason. Over time,considerations such as the social utility of activities and the dynamic nature of neighbourhood development also became considerationsin the determination of reasonable limits. [20] Because the law of nuisance is judge-made law, it is always subject to the priority of the legislative branch of government.

Thelegislature can make choices regarding property use that supersede or supplant the choices that might otherwise be made by judges. Inthis jurisdiction, the legislature made such a choice in enacting the Farm Practices Protection Act, … [23] All of the activity of which the Plaintiffs complain, with the exception of the actions interfering with the use of the public footpathand the failure to retain a buffer zone, are farming activities as defined in the Act. Therefore, the Act bars the Plaintiffs from suing theDefendant in nuisance in respect of those activities.

Because the Plaintiffs have not sought a determination from the specialist tribunal asto whether the Respondent’s activities are acceptable farm practices, the Act also provides that they cannot apply to this Court for aninjunction or other order prohibiting the Respondent’s farming activity. [32] Justice Boone took the approach that the injunction could not be granted because it did not meet the first prong of the RJR-MacDonald test, in that there was no serious issue to be tried. [33] His decision underscores the importance of relying on the expertise of statutorily appointed board members and the requirementthat the plaintiffs’ complaint be pursued through the proper forum. [34] The plaintiffs have argued quite vigorously that the Act cannot possibly apply to the defendant because it does not operate a farmand none of its operations are “for farm purposes”. [35] While I am not making a ruling, as the Board should be left to determine its jurisdiction over the matter, it is worth noting thatthe use of the term "farm" as outlined in the Act does not explicitly include or exclude any of the defendant's operations.

In addition, theFrench version of the Act mainly uses the term "agricole" rather than "ferme" (the French translation for "farm") to translate the word"farm" used in the English version. A broader

interpretation of the protected activities, rather than relying on the traditional definition ofthe term "farm", seems to me to be appropriate. [36] The plaintiffs further submit that only a fraction of the defendant’s commercial activities consists of producing fertilizer andlivestock feed which would also exclude it from the application of the Act.

I note however that the legislation, in particular paragraph (k)of the definition of “agricultural operations” does not require the activities of a party subject to a complaint to be exclusively involved inthe “storage, use or disposal of organic waste for farm purposes”. [37] However, whether the defendant’s activities fall within the scope of the legislation will again be a matter for the Board shouldthe plaintiffs decide to proceed with their complaint. [38] For the reasons set out above, it is not necessary, nor is it appropriate for this Court to assess the plaintiffs’ request for injunctive

relief. The motion is therefore dismissed. COSTS [ 39 ] As the defendant is the successful party, I award costs against the plaintiffs in the amount of $2,000 plus HST. DATED at Moncton, New Brunswick, this 5 th day of December 2023. ________________________________________ Christa Bourque Justice of the Court of King’s Bench New Brunswick, Trial Division