July 14, 2007
Every Canadian province has enacted some form of “right-to-farm” legislation. These laws aim to protect the farming industry by making it largely immune from nuisance lawsuits brought by neighbours who are adversely affected by farming operations. A nuisance occurs when someone or something unreasonably interferes with another person’s ability to use or enjoy his property. Nuisances are often disturbances such as loud noises, offensive odours, smoke, dust, vibration, or even light.
Manitoba passed the first right-to-farm law in Canada in 1976 with the Nuisance Act, which it replaced in 1992 with the Farm Practices Protection Act. Quebec followed suit in 1978 with an Act to Preserve Agricultural Land, since replaced by an Act Respecting the Preservation of Agricultural Land and Agricultural Activities. In 1986, New Brunswick passed its Agricultural Operation Practices Act; a new law of the same name came into force in 2003. Nova Scotia also passed its Agricultural Operations Protection Act in 1986; the act has since been replaced by the Farm Practices Act. Alberta passed the Agricultural Operation Practices Act in 1987 and amended it in subsequent years. Ontario’s right-to-farm provisions first appeared in the 1988 Farm Practices Protection Act and are now contained in the Farming and Food Production Protection Act. British Columbia enacted the Agriculture Protection Act in 1989; the act has since been replaced by the Farm Practices Protection (Right to Farm) Act. Saskatchewan’s Agricultural Operations Act passed in 1995, and Prince Edward Island passed the Farm Practices Act in 1998. Finally, Newfoundland and Labrador passed the Farm Practices Protection Act in 2001; the law came into force in 2003.
Before the passage of these right-to-farm laws, someone who had a nuisance claim against a neighbouring farmer could ask a court to issue an injunction – an enforceable order to permanently cease the disturbance. The plaintiff could also seek monetary damages as compensation for harms suffered. The guiding principle behind nuisance law is the maxim that one must not use one’s property in such a way as to harm that of another. That is, one can do as he please on his own land, so long as he does not adversely affect his neighbour or his neighbour’s land.
Courts in Canada have generally adhered to this rule, and when they have found an activity to unreasonably interfere with a landowner’s use and enjoyment of his property they have enjoined its practice and/or awarded damages.1 This has been the case even if the person creating the nuisance has done everything possible to prevent the nuisance2 and even if the complained-about activity was going on before the aggrieved neighbour moved in and made a complaint.3 Similarly, courts have traditionally not allowed nuisances to continue simply because the practice that created them contributed to some common societal interest. For example, under the customary common law, a court may have required a factory to cease operating if it spewed smoke and dust onto a neighbour’s land, even if the factory provided jobs and goods that were valuable to society. Such has been the importance of individual property rights in the common law.