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Organic farmers in Nova Scotia filed a lawsuit against a neighbouring farm for damages allegedly caused by a herbicide which drifted onto their property. In particular, the plaintiffs claimed that the herbicide caused damage to their crops, the miscarriage of four horses, and personal injury.

The defendant farmer claimed immunity under section 10(1) of Nova Scotia’s Farm Practices Act which protects farmers from any civil action in “nuisance, negligence or otherwise, for any odour, noise, dust, vibration, light, smoke or other disturbance resulting from an agricultural operation.” The action was stayed pending a ruling from the Farm Practices Board as to whether the activities in question constituted “normal farm practice.”

In January 2013, the Farm Practices Board ruled that the defendants had not acted in a manner inconsistent with “normal farm practice.” The Supreme Court of Nova Scotia considered the matter, as well as whether herbicidal drift is an “other disturbance” under the Act. The court noted that the issue had not been previously addressed, although there is case law in other provinces (Saskatchewan, Manitoba and P.E.I.) dealing with actions for damages caused by herbicidal drift. None of those decisions, however, consider herbicidal drift in the context of provincial right-to-farm legislation. Ultimately, the case was dismissed because the court found that “herbicidal overspray or drift and contaminated run-off from ditching, are ‘other disturbances’ resulting from an agricultural operation as contemplated by section 10(1)(a) of the Act.” Nauss v. Waalderbos, 2014 NSSC 245, at para. 17.

Ontario has a similar Act called the Farm Practices Protection Act. Under section 2(1) of the Act, farmers are protected from claims in nuisance, unless the farmer has violated any land use control law, the Environmental Protection Act, the Pesticides Act, the Health Protection and Promotion Act, or the Ontario Water Resources Act. Notably, however, the Farm Practices Protection Act does not provide immunity from claims sounding in negligence or any other claim aside from nuisance.

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