Better Pork - December 2003
BEHIND THE LINES
by ROBERT IRWINAs this month's cover story shows, new government legislation hasn't changed the tune sung by hog farm opponents.
Pork producers held high hopes for Bill 81, the province's nutrient management legislation, which became law Sept. 30 under the former Conservative government. The legislation is based on sound science. A wide cross section of society provided input over a period of years. In addition to representatives from farm groups and municipalities, the current 20-member advisory committee includes members ranging from university experts to representatives from Ducks Unlimited and Conservation Ontario.
The legislation was endorsed by Ontario Pork and other farm organizations because it set out a clear framework for farmers and municipalities. Unfortunately, some rogue municipalities continue to target the hog industry with restrictive by-laws that fly in the face of Bill 81. Simcoe is using well-head protection legislation to block pig farms, an approach that some observers believe will catch on with other municipalities. In East Hawkesbury, where police suspect a protester burned the Bedard family's barn to deter them from starting a pig farm, the recently-defeated mayor and his council proudly proclaimed an outright ban on pig farms. Despite an abundance of studies worldwide on the subject, the mayor demanded that the Ontario Ministry of Agriculture and Food (OMAF) or some unidentified body provide research that satisfies council that pig farms are safe.
In theory, any farmer could challenge these tactics in court. In practice though, individual legal challenges aren't an option, as the City of Ottawa fiasco has shown. Ottawa observers predict that the city's legal bill for an ongoing battle to stop a hog farm in a rural area could reach $2 million.
It's irrational for the province to hold farmers to the letter of the law and ignore municipalities that flagrantly breach the same law. But that's what's happening. If this continues, Bill 81 will prove worthless.
Peter Meerveld, director of OMAF's recently-formed Nutrient Management Branch and his 27 member staff have spent $712,000 in their first five months of operation. They enforce Bill 81. Meerveld acknowledged to Better Pork that some municipalities are illegally interfering with producers' efforts to build but, he says, his staff is still trying to decide "how to manage the issue." What advice does he have for farmers who are victimized by wayward municipalities? "I can't advise a farmer what to do," Meerveld says.
Surely the four months which have elapsed since Bill 81 was first passed have provided enough opportunity to explain things to those municipalities who may be a little challenged when it comes to understanding the law?
There is good news. Agriculture minister Steve Peters has dismissed the anti-hog farm rhetoric of Ottawa Liberal MPPs Phil McNeely (Ottawa-Orleans) and Jean Marc Lalonde (Glengarry-Prescott-Russell). In an interview last month with Better Pork, Peters also affirmed his support for Bill 81 and made it clear his government won't change it significantly.
Now Peters needs to ensure that all municipalities comply with the law. BP
© copyright 2003 AgMedia Inc..
back Better Pork - December 2003
Stumbling into the front lines of the hog wars
Opposition to hog barn construction can turn nasty, as the Bedards of Prescott County learned when their barn burned down and they found nails in corncobs. But producers are learning how to respond and, in some cases, are winning the battleby Robert Irwin
Last year, when Donald Crooks felt his knees could no longer endure the grind of milking 60 cows, he and his wife Ginette sold their quota and cows and began trying to sell the farm.That put in motion a series of events that saw them facing public demonstrations and attacks in the local media. It nearly caused the defeat of their local mayor in last month's elections and left the municipality of North Glengarry exposed to more than a million dollars in potential liabilities. "I'm one of the most famous pig producers in Ontario and I don't have any pigs yet," Crooks notes ironically.
The Crooks' decision to sell awakened son Ian's interest in returning home to farm. After careful research, the family found the best opportunity to remain on the farm lay in a contract to raise replacement gilts with Côté-Paquette, a feed company based at L'Ange-Gardien, in Quebec's Eastern Townships. They reversed their decision to sell and applied for a building permit. Word spread like wildfire through their close-knit community and protesters emerged. They labeled the Crooks' operation a "mega farm" and used terms like "toxic industrial waste," to describe manure.
The Crooks, who have 100 head of feedlot beef and 300 ewes, live about 10 kilometres from the Quebec border, just outside the tiny town of Dalkeith in North Glengarry.
They estimate opposition to their barns cost them an extra $30,000 for lawyers fees and extra testing required by the municipality.
Later this month, replacement gilts, weighing about 40 pounds each, are scheduled to arrive in one of their two new 46x335-foot barns. The Crooks will be paid for management and labour required to raise the pigs to about 240 pounds. They will be responsible for selecting conformation as well as recording average daily gain data.
Each barn will house 1,500 pigs. Turnover will be approximately 2.8 times annually. Côté-Paquette supplied all construction materials and labour for the barns and for the 16x162-foot concrete manure silo. The Crooks will pay $1.1 million for the project in four instalments.
The family opted for two indoor whey storage tanks costing an extra $60,000. Whey from the Parmalat plant in Winchester will provide 40 per cent of the pigs' liquid intake. "Helping dispose of a waste like whey is one way we can cut costs and help the environment," Donald reasons.
Deborah Henderson, a key foe of the Crooks' operation, confirms there are no active farmers involved in her group, Concerned Citizens of Glengarry (CCG) and is unsure of the actual number of her supporters because CCG doesn't have a fee membership. She says she assumes "some form of ostracism," is being used by Crooks' supporters to keep farmers in line.
Ontario corporation 1562195 Inc., represented by London lawyer Valerie M'Garry, has served notice of an application to quash the Crooks' building permit. Defendants are North Glengarry and its building inspector Gerry Murphy. A search of Ontario government records shows Robin Poston, 2005 Macks Corners Road, Dalkeith, is the only individual listed on the corporation profile report for 1562195. The incorporation date was August 27, 2003 -- 12 days after Murphy issued the building permit.
Poston says he spent $300 to set up the company. He explains that his is the only name listed in corporate records because things had to be done "in a heck of a hurry" and he was the only one available to go to the courthouse. He says the corporation hasn't spent much so far and won't say how far it will push the case. "It could get expensive," he says, "and we're not 100 per cent sure how far we're going to take the case."
Poston says his group plans to drop North Glengarry as a respondent and focus on Murphy who, he claims, rushed things through without regard to public health and safety. He argues Murphy should have held out until the provincial Liberals had a chance to bring in new anti-hog-farm legislation being pushed by eastern Ontario Liberal MPPs Jean-Marc Lalonde and Phil McNeely.
No threat to wells
For his part, Murphy estimates the municipality has already spent $15,000 to $20,000, "and we haven't even had the hearing yet." He expects protesters to lose their legal challenge, so he and North Glengarry want the court to impose a bond on the corporation so that 1562195 will be accountable for costs. "If you've got something to lose, then you're a little bit more leery about coming across with frivolous lawsuits," Murphy argues. However, if 1562195 succeeds, he warns, "it would set a precedent that would jam up building permits for intensive livestock units from St. Eugene to Windsor." North Glengarry could also be forced to pay for Crooks'new facilities.Murphy bases his optimism about the outcome on some extra hurdles North Glengarry set for the Crooks. Between June, when they first approached Murphy about construction, and August, when the permit was finally issued, the family was required to complete a $3,000 water study. "We wanted to ensure that this operation would have enough water for its own use and would not put a hydraulic overload on the aquifer," Murphy explains. He says the study determined the pig farm was no threat to neighbouring wells.
Murphy also required the Crooks to hire a surveyor with Global Positioning Satellite (GPS) equipment. That meant no one could claim that the barns and manure storage deviated even slightly from the stated location. "If that happened, the municipality and the building inspector would just be in a world of shit," Murphy observes. He speculates that the municipality "would be on the hook" for building costs, as well as the farmer's loss of income and losses arising from the application process.
Deborah Henderson feels she has good reason to be concerned about the Crooks' plans. Ten years ago, she moved from Montreal to a 200-acre farm about 1.5 kilometres from the Crooks. She says the pig operation has killed her plans to establish a horse stable.
"People won't want to leave a horse here when there is a continual smell of manure," she argues. She also worries about contamination of ground and surface water, and neighbours quality of life.
Her objections are backed by Dr. Robert Bourdeau, chief medical health officer for eastern Ontario. In a letter to council, published in local media, Bourdeau objected to the project on many grounds including "the dissemination of droplets through ventilation systems."
Howard Galganov, former president of the English language rights group Alliance Quebec and a relative newcomer to North Glengarry, has also condemned the project. Galganov, who lives near Alexandria, more than 10 kilometres from the Crooks' farm, admits he's no expert and says his only information comes from, "what I've read about hog farming in Quebec and Europe."
Whatever its actual size, CCG managed to make the Crooks' farm the most widely reported topic in local papers. The group bought ads calling for the ouster of Mayor Bill Franklin and his council. Franklin, popular with local farmers, narrowly won the election by 250 votes. "I really don't give a damn as long as we've done it right," the mayor asserts.
Henderson insists that "hog manure has additional risks when compared to other manure." But, mayor, Franklin has a different perspective. "We don't care what kind of agriculture it is as long as the rules are all followed," he told Better Farming in a telephone interview. He said it's "just not acceptable to put special restrictions on one sector."
Nails turning up in corncobs
Resistance to pork production, common in other areas, has been simmering in eastern Ontario for several years. The city of Ottawa, which recently annexed vast tracts of farmland, is seeking a three-kilometre buffer zone around hog farms and, according to some reports, could spend up to $2 million to block a pig farm that meets all current guidelines.Opposition to hog farming reached a new low in eastern Ontario this summer, however. A few kilometres northeast of the Crooks, police suspect a protester burned a 40x80 tarp barn owned by the Bedard family of St. Eugene in eastern Prescott County. And, during this fall's harvest, 10-inch nails began turning up in corncobs growing in the field where the proposed barn would be situated. Fortunately, a metal detector had been installed on the Bedards' harvester, preventing costly damage to the machine.
The Bedards, who have been trying since February to get East Hawkesbury council to approve a planned a hog barn, have met existing municipal requirements and are more than 1.5 kilometres from the nearest neighbour. According to the Nutrient Management Act, they have enough land to accommodate manure from 6,000 hogs.
Their son Pierre Luc, who currently helps with the dairy herd and crops, sees a contract with Côté-Paquette as a way to remain in farming. His mother Nicole thinks her other son, who works off the farm, could join the family farm "if we have enough jobs."
Nicole says East Hawkesbury council has made it clear the family will need a lawyer if it wants to continue its efforts to obtain a permit.
Henderson denies anyone in her group or a similar protest group in East Hawkesbury is responsible for the Bedard barn fire, but she says "this is what happens when people feel they have no recourse and who feel they are threatened."
She feels the Crooks and the farming community should have done more to inform neighbours and reassure them about how future environmental problems would be dealt with if they occur. Instead, she says, "farmers asserted their rights." Henderson also argues that there is no evidence large swine farms offer any benefit to a community.
Nor does she like the idea of trusting farmers to respect the environment. "When you look at what happened in southwestern Ontario at Wood Lynn farms, those neighbours were probably told to trust the integrity of the farmer, too." (The Ontario Society for Prevention of Cruelty to Animals recently laid 77 animal cruelty charges in connection with Wood Lynn Farms, but at press time no court had yet ruled on the merits of the charges.)
Henderson says she and her group want the provincial government to enact an immediate province-wide moratorium on industrialized hog operations. How does she rate the odds that this will happen? "We have a better chance with the Liberal government," she predicts.
However, agriculture minister Steve Peters was unequivocal when Better Pork asked if there was any chance his government would consider either a moratorium or any tough new regulations for the hog sector. "No and no," he responded.
Nevertheless, Murphy says if protesters "want to make changes, they need to go from the top down rather than from the bottom up. Municipal councils' hands are tied on this and a lot of issues."
Partnership with Quebec
About 40 kilometres west of Dalkeith, Paul and Linda Vogel have always loved their seed cleaning and cash crop business and the lifestyle it provides for them and their two school-aged children. But, discouraged by low crop prices and rising input costs in 2000, the Vogels began looking for more income and stumbled onto the front lines of the so-called hog wars.Paul noted that a few area cash croppers were cutting fertilizer costs by buying chicken manure from Burnbrae Farms at Lyn near Brockville, about 100 kilometres away. The Vogels were attracted to the idea that manure builds soil organic content but calculated that trucking from such a long distance would cost between $10 and $14 per tonne, plus another $5 per tonne for spreading -- arguably more than the nutrients in the manure were worth.
They reasoned that raising their own livestock might add to their income while reducing fertilizer costs. Pigs, however, weren't in their thoughts. "Growing up on a dairy farm, I heard a lot about pig farms going broke," says Paul. "If someone had told us we would have pigs in our back yard, we would have laughed at them."
These views were reinforced when they eventually called Farm Credit Canada (FCC) in search of funds for a hog operation. "They told us straight out 'no,'" Paul recalls. But the couple gave pigs another look after comparing the financial outlay for swine with alternatives, such as poultry or dairy.
Eventually they called FCC again to pitch a proposal they had received from F. Menard Inc., one of Quebec's largest producers. "They (FCC) told us to come on in," Paul recalls. The Vogels say FCC was impressed by the same thing they were -- the risk reduction offered by contract production and the comfort of contracting with an industry leader.
Vertically integrated operators like F. Menard can't expand in Quebec, which has a manure surplus. Eastern Ontario, just an hour or two away, represents a logical alternative.
In May 2002, the Vogels opted for a modest 240x42-foot finishing barn designed by Menard. It would house 1,120 pigs and give them an annual throughput of 3,360 animals. Their project, which included a 12x84-foot concrete manure storage was 428 metres from the nearest house, almost twice the provincial guidelines at the time. The Vogels were confident they had covered all the bases.
Then one Friday, after concrete had been poured, an employee from the United Counties of Stormont, Dundas and Glengarry called to say that neighbours were gathering Monday night at a nearby community hall, to challenge the project.
The Vogels quickly called friends in an effort to pack the meeting with people who understood livestock farming. "You don't take a knife to a gunfight," Paul advises.
The meeting was similar to others held across the province when neighbours get wind of a new or expanding hog farm. Opponents cited problems in North Carolina and warned of odour problems and declining property values. They didn't like the involvement of a Quebec company and they also claimed the Vogels would harm the environment.
The Vogels say opposition to their pig barn dwindled once neighbours got the facts. They feel just one neigbour remains disgruntled, "and it's certainly not one of our closest neighbours," Linda points out.
F. Menard provided advice throughout the construction. The Vogels say Menard's huge buying power saved them many thousands of dollars.
After a year of operation, they haven't had a single complaint. F. Menard sends them three crops of weaners a year. Pigs weigh about 30 pounds on arrival and about 230 pounds when they leave.
Feed comes from Menard and is formulated to meet the pigs' needs, while reducing phosphorus levels in manure. The Vogels have been able stop purchasing fertilizer for incorporation and rely only on a small amount of purchased starter fertilizer.
The family lives in Stormont County along the Glengarry county border. Paul is provincial director of the Glengarry Soil and Crop Association, while Linda is Glengarry Federation of Agriculture secretary and has worked tirelessly with the federation to help North Glengarry council deal with the Crooks' building permit process. Linda lost out in her bid to become a candidate for North Stormont council in last month's municipal elections. She believes too many people no longer understand agriculture and she hopes her candidacy raised awareness of farm issues.
All visible opposition to the Vogel operation has faded, but Linda scoffs at high profile protesters like North Glengarry's Galganov, whose horse manure, sometimes piled adjacent to a stream, she says, pollutes more than a hog farm with its concrete manure storage. "Comparing two horses to thousand of pigs is like comparing the Alexandria winds to a class five hurricane," Galganov responds.
But Linda worries about the future of farming in the face of such opposition. "We are only a young couple and we had to fight like this to farm. Will there be any farming left when our kids want to farm?"
Moratorium threat
When Geri Kamenz of Spencerville in Grenville County built his 2,000-head replacement gilt barn in1999, his township of Edwardsburg/Cardinal had no bylaws governing livestock production. A neighbourhood coalition quickly formed to oppose his barn. Among other things, opponents cited a highly publicized spill at Acre-T farms in Ashfield Township, Huron County.Then the municipality considered a moratorium. "It blindsided us," Kamenz recalls. Farmers packed a council meeting dealing with his building permit. "The farming community that makes their living from livestock saw this as a huge threat and fortunately the municipality backpedalled," Kamenz recalls.
The municipality did adapt a nutrient management by-law but based it on the model by-law developed by the Environmental Farm Coalition. Kamenz was able to obtain a building permit and begin construction, but after he had spent an estimated $200,000, the municipality issued a stop-work order over concerns the corner of his building was too close to a neighbour's garage. The distance was supposed to be more than 1,500 feet. The distance in dispute was 17 feet.
To fix things as quickly as possible, Kamenz abandoned an estimated $40,000 of concrete that had been poured for an entire 100-foot module of his project. Then he added 100 feet in the opposite direction.
"Twenty-four months later, we were able to go back and build on the foundation that we had poured because the MDS "Minimum Distance Separation) calculation is different for an expanding operation than a new one," says Kamenz.
How did the protesters react to the expansion? "There wasn't a single word said," Kamenz recalls.
He attributes the dramatic change in attitude to the fact that people had gained confidence in his operation and in the efficacy of the municipality's nutrient management by-law. "I think people realized after two years that these things can be an asset to a community."
From the outset Kamenz, who is a vice-president of the Ontario Federation of Agriculture, has produced under contract with Premium Pork and likes the fact that the "company's reputation has been impeccable."
What advice does he have for others considering a new pork facility? "You have to be thick-skinned because when people feel threatened, they don't differentiate between you personally and your business."
Kamenz also says producers have to persevere when facing what could be a long struggle with hog barn opponents. "It's not for everybody," he concedes. "I wouldn't wish what we went through on anybody." BP
© copyright 2003 AgMedia Inc..
back Better Pork - December 2003
New minister affirms provincial regulations will govern hog farms
by CLIFF EVANITSKI
Newly appointed Ontario Agriculture Minister Steve Peters is the picture of calm and cool in the hustle and bustle of forming a new government. With the Liberal victory and his new cabinet post have come increased phone calls, new staffing, more constituent requests, furniture movers, media interviews and a hectic schedule of public appearances and meetings.So when asked about the City of Ottawa's threat to spend $2 million to stop a proposed hog operation and the stance taken by fellow Liberal MPPs Jean-Marc Lalonde and Phil McNeely that local municipalities -- not the province -- should be the ones to set guidelines for factory farms, Peters takes it all in stride.
"Well, both those individuals may wish to express their personal views, but ultimately they have to look at the platform the party developed and the policies of the party. Those policies were very clear for the province-wide standards and regulations," says Peters, who represents Elgin-Middlesex-London in the legislature. "Premier (Dalton) McGuinty has certainly been on the record as well -- quoted in Ottawa papers -- as supporting the process and supporting those province-wide rules."
Peters vows that the new Liberal government will work co-operatively with municipalities in dealing with factory farms. "Presently the government legal staff are preparing material that's going to assist municipalities in knowing what by-laws or parts of by-laws will be superseded by the new regulation under the Nutrient Management Act," says the new minister, a former mayor of St. Thomas. "In addition, technical assistance is going to be provided for those municipalities wishing to amend their by-laws to work more effectively with the provincial regulation."
As for the opposing viewpoint taken by McNeely and Lalonde, "Well, that will have to be ultimately an issue that will come up at a caucus or one of the committees," says Peters. "But they need to understand that the party's position has been clear and that there's not any intent to deviate from that." BP
© copyright 2003 AgMedia Inc..
back Better Pork - December 2003
How one Tavistock producer won over the neighbours
An open house for neighbours and a pledge to use environmentally sound practices helped Clare Schlegel and his partners make their case for their new liquid finishing barn
by DON STONEMAN
Perth County is the epicentre for the pork industry in Ontario. So Tavistock-area producer Clare Schlegel was taken aback at first by the negative reaction he received when neighbours found out that he was planning to build a new 3,000-head liquid finishing barn on a farm east of Shakespeare, a few miles from his home operation.Someone printed a one-page letter, critical of the project and put it mailboxes around the area. "We received a copy of the letter from some other neighbours who felt we should know what was going on." Schlegel doesn't elaborate on what was in the letter but, he said, "the neighbours didn't talk to us directly."
Schlegel said he immediately sought the neighbours out, introduced himself and invited them to come and inspect the building process at any time. He also explained that his business partners, Cliff and Carolyn Horst, and their family would be living on the farm where the barn is would be sited. In the meantime, the neighbours had contacted East Perth Township's chief building official, who explained the stringent construction requirements to them.
"The township supports farmers, but requires them to go through an intensive process," including a nutrient management plan, says Schlegel. "Between the response of our chief building official and our townships' commitment to sound planning and environmentally responsible agriculture and our response, I think they are still concerned but they let the building proceed."
The barn was finished and Schlegel and partners held two open houses in early October. Producers were invited to visit on a Saturday while neighbours attended an "invitation only" event the night before. The guest list included families and other producers in his production group, Schlegel says -- about 80 people in all.
"We acknowledged that there was some concern and we promised to be good neighbours and to use environmentally sound practices. We showed them our nutrient management plan and our engineered drawings for the buildings. And we talked about the environmental practices, spreading with an injector or covering the manure soon after if we spread on top."
Other steps to protect the water table included digging test holes and complying with the standards in the new Bill 81. Field tiles have been cut off and the perimeter of the barn has been tiled. The next step will be to install a monitoring catch basin.
"On the odour side, we chose to put ventilation through the ceiling rather than through the sidewalls, believing that it will dissipate odour quicker," Schlegel says. In East Perth producers are required to get two surveys to ensure that it meets minimum distance separation (MDS) requirements, he says.
Schlegel says he received very good feedback from the invitation to the neighbours. "Now the proof is in the pudding and we have to do what we said we were going to do."
He adds that the partners who will live on site have struck up a relationship with a number of the neighbours. "That's important."
In Oxford, the next county to the south, John de Bruyn recently built a barn for 700 sows and weaners. Oxford has done a good job of developing criteria for building barns, he says. The rules are more stringent than the ones developed by the province. "The paperwork has become quite a challenge," de Bruyn says, "but. there is no way around that."
Oxford residents have concerns about pig barns as well, he says. Rural communities such as Sweaburg are now bedrooms for Woodstock, not just retirement communities for retired farmers.
It's important that farmers still be able to ask their local councils for a variance from MDS rules, de Bruyn says. Many farms in Ontario have severed a residential lot. Finding a place to build a barn "would be daunting if they couldn't ask the council for relief," he says. BP
© copyright 2003 AgMedia Inc..
back "All I want is a fair return"
The harsh extremes of capitalism and socialism don't work. Pick your partners carefully and treat them with integrity, understand the rules of the business, remember that the marketplace is always right, and your chances of survival will be better
by RICHARD SMELSKI
Often we hear, "all I want is a fair return for my pigs", which essentially means I want higher prices. A simple method to get higher prices would be to produce fewer pigs. But who should reduce their numbers? Who should go out of business? How would you arrive at this decision if you owned the Ontario pork business?(Note that Smithfield Foods Inc., the world's largest pork producer, is studying their options and they are much bigger than the Ontario pork industry. For example, there are approximately 350,000 sows in Ontario, while Smithfield decisions involve some 800,000 sows.)
If I were a true capitalist, I would be very harsh in a business sense. I would ask for financial statements that identify one's capital investment, cash availability and cost of production and then get rid of the worst 10 per cent. You would do the same the next year and the year after -- similar to a car rental company. The decision would be based on cruel economics.
If I were a socialist, however, I would treat everyone equally (remember, equal is not the same as fair). I would count the number of pigs sold in Ontario and divide it into the number of participants. If I wanted to increase or decrease the numbers, I would just order the participants to increase or decrease their share of pigs.
Personally, I don't believe in the extremes of either system. I believe in a system that treats people according to the contribution (value) that they provide and where the services you provide are directly proportional to the rewards you will derive in such a system. If you look after your business partners, they will look after you. This business fact is often forgotten because of greed. That is why I believe the independent loops that apply humanity and truthful communication will succeed even against the biggest conglomerates.
The harsh economic math ignores human feelings and that can be a competitive disadvantage. Therefore, pick your partners carefully and treat them with integrity, respect and dignity, unlike many big name players that are no longer in the business. New Fashion Pork of Minnesota has expanded from a 500-sow base to over 39,000 sows farrow-to-finish from acquisitions of failed operations. It changed the ways it treated its employees and partners and succeeded when others before could not.
In either extreme, capitalist or socialist, we soon get independent, defensive and ask, "What's in it for me?" Suppose I work harder than the next person or have a competitive advantage like an inheritance? Suppose I don't want to take any risk or want to maintain the status? Suppose I am producing green pork or producing bigger loins? Or suppose I work for family or a major investor? What's in it for me is likely what you are already getting -- the reward for the services you provide.
Who defines fair -- President Bush, Osama Bin Laden or "caveat emptor"? Do we want regulations determined by our politicians to define fair? There are more Ukrainians than pig farmers in Canada, so should the politicians prioritize Ukrainian investment? Or do we want to pick our partners and get what the market will bear for our services?
So understand the rules of the business. Be familiar with the financial indicators and required relationships. Know what Canadian Quality assurance (CQA) standards will be required to compete domestically and globally. You are unlikely to get a greater return for your services unless you change them. New, more competitive alliances will form, new technologies will develop that we haven't dreamt about, and consumers' preferences will dictate what we produce.
The market place is always right. We might not like the rules, we might feel we are not getting a fair return but, unless we change the service, we will continue to get what we got. BP
Richard Smelski is general manager of Ontario Swine Improvement Inc. and a former Ontario government swine specialist.
© copyright 2003 AgMedia Inc..
back More defences to keep in mind when liability charges are laid
Mistake in Fact and Official Induced Error can offer possible lines of defence. They also highlight the need to take these matters seriously and not be too trusting that official sources of information or advice are always correctby MURRAY BLACKIE
In my August column, I discussed due diligence as a defence against strict liability charges arising from environmental legislation such as the Environmental Protection Act (EPA), the Ontario Water Resources Act (OWRA) and the federal Fisheries Act. In addition to due diligence, there are two other branches of Reasonable Care Defence -- the defence of Mistake in Fact and the defence of Officially Induced Error.In using a defence of mistake in fact, a defendant must show that the mistake is not only an honest one but one based on reasonable grounds. Defendants cannot simply say that they were unaware of the facts. If a violation is a foreseeable outcome of their actions, then they should have given thought to the potential problem and made all reasonable inquiries to resolve it.
This defence usually involves establishing due diligence. The defendant has to show that he or she took all reasonable measures and made all reasonable inquiries to gather the correct information. Like due diligence, a mistake of fact defence requires all reasonable care.
The defence of officially induced error may be used if the accused has relied upon the incorrect legal opinion or advice of an official responsible for the administration or enforcement of the law in question. The accused must show that he or she relied on the erroneous legal opinion of the official and that reliance on that opinion was reasonable. The degree of reasonableness will depend on:
Although not directly related to a discussion of reasonable care, there has been interest of late in the Inco Decision.
- The effort made to ascertain the proper law;
- The complexity or obscurity of the law;
- The position of the official;
- The clarity, definitiveness and reasonableness of the advice.
Inco was charged and convicted under the OWRA for discharging untreated mine effluent into a creek and failure to report the discharge.
During the investigation, MOE investigators required Inco employees to submit to questioning, despite objections of Inco lawyers, who advised that Inco workers were co-operating to avoid charges of obstruction.
In this case, the Court of Appeal ruled that an investigator does not have the authority to compel a person to answer questions if reasonable and probable grounds exist to believe that an offence has been committed.
Assuming that just grounds do exist, an investigator must obtain a court order to require answers. (Presumably a witness can voluntarily agree to be interviewed and answer question or give statements.) However, if an inspector is carrying out an initial response to a reported spill or complaint, he or she does have the right to require that questions be answered as they are not yet of the opinion that an offence has likely been committed.
In the same decision, on proof of water impairment the Court of Appeal held that for substances that are inherently toxic, a zero tolerance standard is appropriate. For other substances, evidence of the concentration, the quantity of material and the duration of the incident must be considered. Was it likely that the amount of a particular material discharged over a given time could impair water? In the case of manure, this may be of little benefit to farmers since high-strength organic waste, usually containing elevated levels of ammonia, could be argued to be inherently toxic. In trying to use this defense due to the lack of physical evidence of actual impairment then one should consider site specific or case by case circumstances.
Although the other two branches of the overall reasonable care defence are less likely to apply in most cases, they do highlight the need to take these matters seriously and not be too trusting that official sources of information or advice are always correct.
So, when an inspector comes, be co-operative but also be cautious with admissions and with possibly premature conclusions at the onset of a regulatory response.
Seek advice before accepting regulatory decisions that you are reluctant to accept and which may have significant ramifications on your operation. BP
Murray Blackie is the former agricultural specialist with the Ministry of the Environment and is now a consultant, expert witness and writer on agro-environmental issues.
© copyright 2003 AgMedia Inc..
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