Agricultural Law NetLetter - Monday, July 21, 2014 - Issue 304

** HIGHLIGHTS **

A Justice of the Nova Scotia Supreme Court has held that herbicide spray drift is an "other disturbance" within the meaning of s. 10 of the Nova Scotia Farm Practices Act. Consequently, the Act requires plaintiffs who allege they have been damaged by herbicide spray drift on the grounds of a farmer's negligence or on the grounds of nuisance to first bring an application to the Farm Practices Board to determine whether the agricultural operation complied with "normal farm practices". The Board's finding on this point (which is subject to a right of appeal) binds the plaintiff, who can only bring an action if the Board concludes that the farmer did not comply with "normal farm practice". [Editor's note: The Court indicated that this was the first Canadian case in which this issue was considered. The Court reviews herbicide spray drift decisions from other provinces.]. (Nauss v. Waalderbos, CALN/2014-025, [2014] N.S.J. No. 397, Nova Scotia Supreme Court) The Ontario Court of Appeal has set aside a lower Court decision which ruled that all-terrain vehicles used by farmers are a "self-propelled implement of husbandry" which are not required to be insured under Ontario's compulsory insurance regime. ATVs are not specifically manufactured, designed, redesigned, converted or reconstructed for a specific use in farming. They are specifically defined as off-road vehicles under Ontario's compulsory insurance regime must, therefore, be insured. As a consequence, an Ontario farmer who was seriously injured while driving his ATV on a public highway was barred from recovering from the driver of a vehicle who was convicted of careless driving, and the driver's insurer. (Matheson v. Lewis, CALN/2014-026, [2014] O.J. No. 3304, Ontario Court of Appeal) ** NEW CASE LAW **

Nauss v. Waalderbos; CALN/2014-025, Full text: [2014] N.S.J. No. 397; 2014 NSSC 245, Nova Scotia Supreme Court, J.D. Murphy J., July 18, 2014.

Right to Farm Legislation -- Herbicide Spray Claims -- Farm Practices Board Determination that the Spraying is not a "Normal Farm Practice" a Precondition to Negligence Actions in Nova Scotia.

The Plaintiffs, John and Linda Nauss ("Nauss") operated an organic farm in Shinimicas, Nova Scotia, across the road from a farm operated by the Defendants, John Waalderbos and Viking Crest Farm Ltd. ("Waalderbos"). The Nauss' alleged that on May 15, 2007, Waalderbos sprayed his lands with herbicide that drifted onto their property, causing crops to be damaged, 4 horses to miscarry and significant health issues to Mrs. Nauss - allegedly as a result of exposure to herbicide "overspray".

The Nauss' also alleged that ditching activities on the Waalderbos farm contaminated water runoff that caused loss and damage.

The Nauss' contacted the Nova Scotia Department of the Environment concerning Waalderbos' activities and were advised that they could bring their concerns before the Farm Practices Board (the "Board") pursuant to the Farm Practices Act, S.N.S. 2000, (the "Act"). The Nauss' did not do so but instead commenced an action for damages based in negligence.

Section 10(1) of the Act prohibits the commencement of civil actions for nuisance or negligence resulting from an agricultural operation unless the Board finds that...